Divorce is never simple—but when one spouse is mentally ill or in a prolonged state of unconsciousness, the legal and ethical questions become far more complex. Can a person in such a vulnerable condition be divorced? And if so, are there any safeguards in place to protect them from being financially or legally exploited?

South African law does allow for divorce under these circumstances—but not without conditions. The Divorce Act outlines specific protections intended to shield mentally ill or unconscious spouses from unfair outcomes, such as forfeiting their share of the matrimonial estate. Unfortunately, the law doesn’t go as far as many assume. In fact, its current wording may leave vulnerable spouses exposed to outcomes it was meant to prevent.

The Grounds for Divorce - A Quick Breakdown

Under South African law, there are three ways a marriage can be legally dissolved:

1. Irretrievable breakdown of the marriage

2. Mental illness

3. Continuous unconsciousness

The most common ground for divorce is irretrievable breakdown—when the relationship has deteriorated to such an extent that reconciliation is no longer possible. This is the basis most people are familiar with, and it’s the default route in the majority of divorce cases.

But the law also recognises that not all marriages fall apart due to conflict or misconduct. Some break down because one spouse becomes permanently unwell—either mentally or physically. When that happens, section 5 of the Divorce Act provides a legal mechanism to end the marriage on the basis of mental illness or continuous unconsciousness. These are not used often, and they require specific conditions to be met.

Importantly, while these two medical-based grounds were created to deal with rare and difficult cases, they’re not simply a compassionate alternative. They come with legal consequences—particularly when it comes to the division of assets. And not everyone who is mentally ill or unconscious qualifies for protection under these provisions.

What Section 5 Means for Mentally Ill or Unconscious Spouses

Section 5 of the Divorce Act was written to address rare but deeply sensitive situations—where one spouse is no longer mentally or physically capable of participating in a marriage due to illness or injury. It outlines two separate medical grounds for divorce: mental illness and continuous unconsciousness. At face value, this may seem like a humane way to allow closure in tragic circumstances. But the law is far more restrictive than most people realise, and not everyone who is mentally ill or unconscious qualifies.

1. Divorce on the Grounds of Mental Illness

To get divorced on the basis of a spouse’s mental illness, the law sets out very specific criteria. These include:

• The spouse must have been formally admitted as a mentally ill patient under the Mental Health Care Act.
• They must have been institutionalised for at least two consecutive years before the divorce papers are filed.
• Two independent psychiatrists must confirm that the person is mentally ill and that there’s no reasonable prospect of recovery. One of these psychiatrists must be appointed by the court.

These requirements are rigid by design. They aim to ensure that divorce is not granted lightly or abused in cases where the mental illness is temporary, manageable, or exaggerated. However, they also create a legal threshold that excludes many people who may still be highly vulnerable.

For example, if a spouse is receiving voluntary outpatient psychiatric treatment, or if they’ve been mentally ill for less than two years, they do not qualify under section 5. Likewise, someone in a private mental health facility or receiving community-based care—no matter how severe their condition—falls outside the scope of this provision.

The result is a legal framework that recognises only a narrow category of mental illness. Everyone else must be dealt with under a different part of the law, often leaving vulnerable spouses exposed to consequences that section 5 was meant to prevent.

2. Divorce on the Grounds of Continuous Unconsciousness

The law also allows a divorce if one spouse is in a prolonged state of unconsciousness. But again, strict rules apply. According to section 5(2):

• The person must have been unconscious for at least six months before divorce proceedings begin.
• Two medical practitioners must confirm the diagnosis, one of whom must be a neurologist or neurosurgeon appointed by the court.
• The court must be satisfied that there is no reasonable prospect of recovery.

While this route was introduced to deal with tragic situations—such as a spouse in a coma due to a traumatic brain injury—the definition of “continuous unconsciousness” is narrow. It excludes other medical conditions that may involve severe cognitive or physical decline but don’t fit neatly into that category.

Another legal grey area is the term “physical disorder.” The law requires that the unconsciousness be caused by a physical condition—but doesn’t define what that means. Is it possible for a mental illness to cause a physical collapse that leads to unconsciousness? Can a physical disorder later trigger mental illness? Medical experts agree that the line is often blurred—but the law treats them as separate and mutually exclusive.

This distinction can matter enormously. If a divorce is brought under the wrong medical ground—say, unconsciousness instead of mental illness—it could be rejected outright, even if the spouse’s condition is equally severe.

3. The Illusion of Protection

Section 5 does offer some procedural protections for the affected spouse. A court may:

• Appoint a legal representative (at the cost of the spouse filing for divorce)
• Require the provision of financial security for the ill spouse’s interests
• Disallow a forfeiture of patrimonial benefits under section 9(2) (we’ll return to this later)

These protections are essential—but they are only activated if the spouse qualifies under section 5 in the first place. And as we’ve seen, many mentally ill or unconscious individuals won’t.

This is where the law’s logic begins to unravel. A spouse with a debilitating but short-term illness, or one receiving non-compulsory treatment, can be divorced under section 4 instead—without the safeguards section 5 was meant to provide.

In effect, the law protects a small subset of people very well—while leaving many others completely exposed. This is not merely a gap in the law. It’s a structural flaw that has real consequences in courtrooms and families.

Can Someone Get Around the Protections?

The short answer is yes—and that’s where the system begins to falter.

Even though section 5 of the Divorce Act was designed to protect mentally ill or unconscious spouses from financial or legal vulnerability, it is not the only legal route available to a spouse seeking divorce. South African law also allows divorce based on the irretrievable breakdown of the marriage under section 4(1)—and this is where the loophole lies.

Using Section 4 Instead of Section 5

If the requirements of section 5 are not met—perhaps because the spouse has been mentally ill for only one year, or is being treated voluntarily—the divorce must proceed under section 4(1), like any other case. But courts have also accepted that even where section 5 could apply, a spouse still has the option to pursue the divorce under section 4(1) instead.

This means that section 5 isn’t mandatory, even when all its conditions are satisfied. If the divorce is granted under section 4(1), the court is not restricted by the limitations in section 9(2), which prohibits forfeiture orders against mentally ill or unconscious spouses. As a result, the very protections that section 5 and 9(2) are meant to enforce can be sidestepped entirely.

Case Law That Confirms the Loophole

The courts have acknowledged this issue. In Dickinson v Dickinson, the court allowed the plaintiff to rely on section 4(1) when the requirements of section 5 could not be satisfied due to financial constraints—specifically, the inability to pay for the psychiatrists required by law. The case confirmed that a plaintiff has discretion: they may choose to proceed under section 4(1) even where section 5 might otherwise apply.

Similarly, in Krige v Smit, the court accepted that a divorce could proceed under section 4(1) when the requirements of section 5 had not been met, despite the defendant’s semi-conscious state. Once the court was convinced that the marriage had broken down irretrievably, it granted the divorce—no medical threshold required.

What this means in practice is that legal strategy can override statutory safeguards. A plaintiff can avoid the burden of proving mental illness under section 5—and sidestep the limitations on forfeiture—by simply framing the divorce as an irretrievable breakdown under section 4(1).

Why It Matters

This option effectively neutralises the protective intent of section 9(2). The law assumes that a mentally ill or unconscious person should not be punished for something beyond their control—yet it permits an alternative legal route that reintroduces that very risk.

While some legal scholars have expressed confidence that courts would be reluctant to grant a forfeiture order in such a case, there is no legal obligation to show restraint. Once the divorce proceeds under section 4(1), the defendant is no longer shielded by section 9(2). For a vulnerable spouse with no capacity to participate in proceedings or defend themselves, the outcome could be devastating.

What is Forfeiture and Why It’s a Risk

In South African divorce law, “forfeiture” refers to a court order that strips one spouse of their right to share in the other’s matrimonial benefits—either in part or in full. While it might sound like a financial technicality, forfeiture can significantly alter the financial outcome of a divorce, often leaving one party without any claim to assets they would otherwise have been entitled to. For spouses who are mentally ill or unconscious and unable to defend themselves, this poses a serious legal and ethical risk.

Understanding the Purpose of Forfeiture

Historically, forfeiture had its roots in the fault-based divorce system. It was designed as a form of punishment—typically aimed at the spouse who had caused the breakdown of the marriage. If a court believed that one party had been largely responsible for wrecking the marriage, it could order that they forfeit their claim to any patrimonial benefits they gained through the union.

Even though fault is no longer a requirement for divorce, section 9(1) of the Divorce Act allows courts to consider issues like:

• The length of the marriage
• The reasons the marriage broke down
• Any serious misconduct by either spouse

If the court finds that allowing one spouse to walk away with substantial benefits would be unfair, it can issue a forfeiture order. These orders are often used to prevent someone from unjustly profiting from a marriage they contributed very little to, or actively damaged.

What Counts as a Patrimonial Benefit?

A patrimonial benefit is not simply anything a person gained during the marriage. The law distinguishes between assets each spouse brought into the marriage and those acquired through the union itself. A forfeiture order can only affect the latter.

For example:

• If one spouse entered the marriage with significant property or savings, they usually keep it.
• But if the couple acquired a home, investments, or savings during the marriage, those may be subject to forfeiture—depending on the marital regime and the court’s findings.

In short, a spouse may lose part or all of their share in what the marriage produced economically, even if they were legally entitled to it under normal circumstances.

Why Section 9(2) Matters

Section 9(2) of the Divorce Act exists to prevent this from happening to people who are mentally ill or unconscious. It prohibits the court from ordering forfeiture when the divorce is granted under section 5—on the grounds of mental illness or continuous unconsciousness. The reasoning is clear: no one should be punished for a condition beyond their control.

This is an important ethical safeguard. The law recognises that when a person is in no position to participate in or influence the marriage, they should not lose everything because of it. Section 9(2) ensures that even if the marriage ends, the ill or unconscious spouse still retains their legal right to a fair share of the marital estate.

But There’s a Catch

As explained earlier, this protection only applies if the divorce is granted under section 5. If the plaintiff chooses to proceed under section 4(1), arguing that the marriage has simply broken down, section 9(2) no longer applies. This means the court can legally grant a forfeiture order—even against a spouse who is incapacitated.

And because the court is not obligated to consider whether the defendant is mentally ill or unconscious if the case is brought under section 4(1), it’s entirely possible for a forfeiture order to be made without any discussion of the vulnerable party’s condition.

The result is a legal contradiction: the Divorce Act claims to protect incapacitated spouses from financial harm, but only under narrow and easily avoidable conditions. When section 5 is bypassed, the door to forfeiture quietly reopens.

Why the Law Doesn’t Go Far Enough

At first glance, it may seem like section 9(2) offers meaningful protection to spouses who are mentally ill or unconscious. But in practice, its impact is limited—and easily circumvented. The result is a framework that looks protective on paper but leaves many vulnerable people exposed in court.

A Law That Protects Too Narrowly

Section 5 of the Divorce Act is only triggered if very specific legal and medical criteria are met. The spouse must be detained in a mental health facility under a reception order, or unconscious for a defined period, with expert medical testimony supporting the diagnosis and prognosis. These requirements exclude anyone whose condition is less strictly defined—even if they are, in reality, incapable of meaningfully participating in a marriage or defending themselves in legal proceedings.

This means the protection in section 9(2) only applies to a small, narrowly defined group. A mentally ill spouse receiving treatment voluntarily? Excluded. A person in a coma for five months instead of six? Excluded. A psychiatric patient not institutionalised under state authority? Excluded.

This rigid legal threshold not only denies protection to many who need it—it also places an unreasonable burden on plaintiffs. Proving all the required elements of section 5 is expensive, time-consuming, and medically complex. The easier—and legally safer—option is often to skip section 5 altogether and pursue a divorce under section 4(1), citing irretrievable breakdown. But this undermines the entire purpose of the protective framework.

The Consequences of Legal Strategy Over Substance

When section 4(1) is used instead of section 5, the legal protections of section 9(2) fall away. Nothing in the Divorce Act prevents a court from granting a forfeiture order in these cases, even if the defendant is severely impaired.

This means a spouse who is mentally incapable of defending their own interests may be stripped of their share in the marriage, without representation, participation, or protection—simply because the technical requirements of section 5 weren’t met, or weren’t pursued.

Critics have called this a failure of legislative design. The legal system is meant to uphold fairness and prevent exploitation—especially of those who cannot protect themselves. But here, the law creates a loophole that does the opposite. It allows for strategic litigation to override what should be a moral and legal obligation to act justly.

Expert Calls for Reform

Academic and legal voices have long warned that sections 5 and 9(2) are inadequate in their current form. Scholars such as Zaal and Midgley have argued for the repeal or major revision of section 5, suggesting that it does not reflect the reality of how mental illness and vulnerability manifest. Others have labelled section 9(2) a “dead letter”—technically valid, but practically useless unless invoked under the narrowest of circumstances.

There’s also the issue of how medical diagnoses are handled. Current law leans heavily on a Western clinical model of psychiatry, excluding other cultural and religious understandings of illness and recovery. This, too, has been criticised as outdated and discriminatory.

The broader concern is clear: a law intended to shield the vulnerable has become a legal obstacle course—one that fails most of the people it was written to protect.

What Should Be Done

Fixing the flaws in section 5 and 9(2) of the Divorce Act isn’t just a matter of legislative housekeeping. It’s a question of dignity, fairness, and the duty of the law to protect those who cannot protect themselves.

Several solutions have been proposed—some moderate, others far-reaching—but all share one goal: ensuring that mentally ill or unconscious spouses are not left at the mercy of legal loopholes.

1. Replace the Rigid Requirements with a Broader Definition of Vulnerability

The most immediate step would be to broaden the scope of section 5. Rather than requiring institutionalisation, involuntary detention, or arbitrary timeframes (such as “two years” for mental illness or “six months” for unconsciousness), the law should shift focus to the present condition of the spouse and their ability to function in the marriage.

A more inclusive and flexible approach would:

• Recognise voluntary and outpatient treatment as valid contexts for protection
• Include mental illness or unconsciousness that is clearly severe, even if shorter in duration
• Focus less on prognosis or permanence, and more on current vulnerability and capacity

This would ensure that more individuals who are genuinely incapacitated are included in the law’s protective umbrella.

2. Appoint Curators Where Necessary—Regardless of the Divorce Ground

Another practical reform would be to introduce a mandatory requirement for a curator ad litem (a court-appointed legal representative) wherever one party to a divorce is clearly unable to represent themselves, regardless of whether the case is brought under section 4(1) or section 5.

This would prevent divorces from proceeding without proper legal support for the vulnerable spouse and allow courts to weigh up the real context of the marriage breakdown, not just the procedural technicalities.

The appointment of a curator is already an option under section 5(3), but its use should be extended and standardised wherever there is mental incapacity or unconsciousness—regardless of the section invoked.

3. Protect Against Forfeiture Based on Condition, Not Section

Section 9(2) currently blocks forfeiture only when the divorce is granted under section 5. This link needs to be broken.

A better approach would be to tie the protection directly to the state of the defendant, not the procedural path the plaintiff chooses. If a spouse is proven to be mentally ill or unconscious—regardless of how the divorce is structured—then the court should be legally barred from issuing a forfeiture order against them.

In its current form, the law places too much emphasis on which section is used and too little on who the law is meant to protect.

4. Clarify the Law’s Intent and Remove Ambiguity

Finally, there needs to be clear legislative drafting that eliminates loopholes and removes any ambiguity about the court’s responsibility when dealing with vulnerable spouses. Where section 5 or 9(2) are capable of being bypassed on a technicality, the Act fails its protective purpose.

Any reform should clarify:

• That no person should suffer legal prejudice due to a condition they cannot control
• That courts are expected to actively assess mental or physical incapacity, regardless of which section is invoked
• That justice cannot rest on procedural convenience alone

VDM Attorneys – Divorce Law Attorneys in Sandton

The law governing divorce in South Africa is meant to uphold fairness and protect those who cannot advocate for themselves—but when it comes to mentally ill or unconscious spouses, the system still falls short. Despite the intent behind section 9(2) of the Divorce Act, its protections are tied to outdated definitions and rigid procedures that can be bypassed with little resistance. The result is a legal gap where vulnerable individuals—those least able to defend themselves—are left exposed.

At VDM Attorneys, we believe that the law should never work against those it was designed to protect. Our divorce law team in Sandton approaches every case with the professionalism, care, and legal precision that complex matters demand. Whether you're facing difficult decisions involving mental incapacity, questions around forfeiture, or any other aspect of divorce law, we’re here to provide clear guidance, strong representation, and trusted advice.