Dirvorce, irretrievable breakdown of the marriage and the protection order
One of the biggest decisions a person can make in his/her life is the decision as to whether to get divorced or not.
At the end of the day this is very much a personal decision, and each individual will know whether his/her marriage has in fact irretrievably broken down or not. Generally when an attorney consults a client and is given reasons of gross misconduct on the part of one of the parties, this would appear to be an indication that the marriage has irretrievably broken down. Examples of gross misconduct would be:
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Abuse of alcohol or drugs;
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Extramarital affairs;
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Physical abuse; or any other type of abuse, such as verbal, emotional, financial or sexual abuse.
Very often a party to a divorce action would be forced to obtain a protection order against the other party to protect himself/herself and/or the minor children from abuse.
Once a party applies for a protection order a return date will be given for the other party to oppose the matter in court. Being armed with a protection order places an abused party in a strong position, as if the police have to be involved to sort out a domestic problem, they will immediately lock up the protection order violator once they see the protection order document.
Other reasons for the breakdown in the marriage could be as follows:
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No meaningful communication;
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The parties have lost love and respect for each other;
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By virtue of this the one party has withdrawn himself/herself from the other party.
A party who is uncertain as to whether to proceed with a divorce action reserves the right to instruct his or her attorney first to send a preliminary letter to his/her spouse advising him/her of the intention to institute divorce action. One must always remember that a divorce is never final until it is made an order of court, and a party reserves the right at any stage during the divorce proceedings to withdraw the action.
This article was written by Peter Baker, a divorce lawyer based in Cape Town.
