Issue: Does infidelity play a part in the divorce process?

Here’s a question from Dumi:

A few months ago, my wife found out I cheated on her, and decided she wanted to divorce me. She did not catch me cheating, but she found evidence of the affair months after I had ended it. It wasn’t even really an affair, just sex a few times with a colleague, and I regret it ever happening. I promised my wife I would never do it again, but she still refuses to forgive me.

It seems senseless to me to end our marriage of 16 years because of a silly mistake. I genuinely love my wife, and I don’t want a divorce. I’ve told her I will never grant her a divorce because I believe we can save our marriage. Other than the foolish affair, everything was great. She says I can’t refuse to grant the divorce because I’m the one who cheated. Is this true? Do I lose my right to refuse a divorce just because I cheated?

From The Legal Desk:

Thanks for your question, Dumi. In a way, your wife is right. You cannot refuse to grant a divorce, but that is not a right you lose because you cheated. To explain, let’s take a look at the legals…

Before the implementation of the Divorce Act¹ (“Act”), the divorce legislation in South Africa operated on the fault principle, which required the identification of an innocent and a guilty party in every divorce case. The legal framework recognised four specific grounds for divorce: adultery, malicious desertion, incurable mental illness lasting seven years, and imprisonment for a minimum of five years after being declared a habitual criminal.

With the enactment of the Act, a shift occurred towards a no-fault divorce system. This change allowed spouses to seek a divorce without necessitating the identification of fault or guilt, even if one of the spouses was committed to preserving the marriage. In essence, the consideration of fault has become irrelevant when determining whether a divorce should be granted.

The Act includes three grounds for no-fault divorce:

1. The irretrievable breakdown of the marriage as outlined in section 4;
2. The mental illness of a party to the marriage as outlined in section 5(1); and
3. The continuous unconsciousness of a party to the marriage as outlined in section 5(2).

Generally, “irretrievable breakdown of the marriage” is the most commonly cited reason for divorce.

Section 4(2) of the Act provides guidelines for determining when a marriage has irretrievably broken down. The court is not bound by these guidelines, meaning it may find irretrievable breakdown based on different facts or determine that a marriage has not broken down irretrievably, even if a specific guideline’s situation exists. These guidelines are as follows:

1. The parties have not cohabited as husband and wife continuously for at least one year immediately before filing for divorce (Section 4(2)(a)).
2. The defendant has committed adultery, and the plaintiff deems it irreconcilable with a continued marriage relationship (Section 4(2)(b)).
3. The defendant has been declared a habitual criminal by a court, and the defendant is undergoing imprisonment as a result of the declaration (Section 4(2)(c)).

As established in the case of Levy v Levy,² if the court determines that the marriage has irretrievably broken down, it does not have the discretion to deny the divorce and is obligated to grant it. However, the court retains the option to delay divorce proceedings if there is a reasonable chance that marital reconciliation might occur through counselling or further reflection, as per section 4(3) of the Act.

In your situation, Dumi, even if your intention is to salvage your marriage, the court is likely to conclude that restoring a normal marital relationship is improbable if your wife is resolute in terminating the marriage and can present objective reasons for doing so – such as your admitted adultery, which she finds irreconcilable with sustaining the marriage.

It’s worth noting that although fault has become inconsequential in the decision to grant a divorce under the “no-fault” system, misconduct still holds relevance in terms of the consequences associated with divorce. These consequences include the division of the spouses’ assets, post-divorce maintenance, or considerations for the well-being of the couple’s children. For example, fault/misconduct is a relevant factor for assessing maintenance under section section 7(2) of the Act.

Nevertheless, courts are reluctant to assign excessive significance to fault or misconduct, particularly when the transgressions are not substantial. In the case of Grasso v Grasso,³ the court held that only misconduct directly relevant to the breakdown of the marriage is considered, specifically emphasising the importance of fault when the misconduct is deemed severe. In the case of Beaumont v Beaumont,⁴ it was stated that the court should adopt a cautious stance when assessing misconduct, intervening only in cases where there is evident disproportionality in the spouses’ behaviour.

So, to answer your question, you can try to refuse the divorce, but in reality, it’s not up to you. Per section 4(2)(b) of the Divorce Act, the court will agree with your wife that your marriage has irretrievably broken down because you committed adultery, and she deems it irreconcilable with a continued marriage.

I hope I’ve clarified things for you, at least from a legal point of view. From a marriage point of view, you can try your best to woo your wife and see if you can gain her love and trust again. Maybe some grand gesture or many grand gestures? A marriage counsellor might also be necessary to guide you through the healing. All the best.

Written by Theo Tembo

citation: Tembo, T. “Does infidelity play a part in the divorce process?” (01 May 2024). The Legal Desk. Available at: https://wp.me/pfvcwT-2O

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1. 70 of 1979. ↩︎
2. 1991 (3) SA 614 (A) 625E–G. ↩︎
3. 1987 1 SA 48 (C). ↩︎
4. 1987 (1) SA 967 (A). ↩︎