Chapter 11

CHAPTER 11 – GROUNDS FOR DIVORCE

 

·                 Prior to the Divorce Act 4 grounds for divorce  existed namely adultery, malicious desertion, and incurable mental illness (7 years) and  imprisonment (at least 5 years after being declared a habitual criminal).

·                 Therefore there was a guilty and innocent party - fault basis.

·                 The Divorce Act – only recognizes 3 grounds for divorce: no-fault basis namely: irretrievable breakdown of marriage (sec 4), mental illness (sec 5) and continues unconsciousness (sec 5).

 

Sec 4 – Irretrievable breakdown of marriage relationship:

 

·                 Test:  what criteria should be applied by the courts? Sec 4(1) stipulates that one should only grant a divorce if satisfied that the marriage relationship has reached such a state of disintegration…..

·                 There are therefore two requirements: marriage relationship must no longer be normal and there must be no prospect of the restoration of the marriage relationship between them.

·                 Normal marriage relationship – definition = consortium omnis vitae. If a party acts in a manner that seriously disrupt/jeopardize it.

·                 Subjective and objective elements determine this – objective look at own interpretation (history) whilst subjective approach looks at Plaintiff’s attitude wanting to get divorce. Therefore by issuing summons (subjective) enough.

·                 In Schwartz v Schwartz = both an objective and subjective approach was used.

·                 Whilst in Swart v Swart it was found that a marriage has broken down if one party no longer wishes to continue with the marriage relationship.  Look at objectively if marriage can be saved.

·                 Coetzee v Coetzee = plaintiff must prove that there is a change in the pattern of the marriage from which breakdown can be deducted.  Therefore if unhappy from start one cannot get divorce as circumstances did not change.

 

Sec 4(2): Guidelines

 

·                 guidelines if regarded irretrievable breakdown of marriage: purely guidelines –is therefore not the only proof or absolutely conclusive

 

·                 Sec4 (2) (a) – provides that if parties have not lived together as husband and wife for continues period of 1 year prior to the divorce action: it can be interrupted as the termination of the consortium. If one therefore wants to rely only on the 1 year period, one must proof that the period had lapsed (exact date etc).

 

·                 Sec4 (2) (b) – defendant has committed adultery and plaintiff finds his/her conduct irreconcilable with a continued marriage relationship. This guideline provides that if a party commits adultery, the adultery per se is not sufficient to claim irretrievable breakdown of the marriage relationship, it is further required that the other party also  finds the aforesaid conduct irreconcilable. Not required to proof adultery on a balance of probabilities –should however place some evidence of adultery before court. Cannot just make allegation.

 

·                 Sec4 (2) © - the guideline allure that a habitual criminal that is undergoing imprisonment may constitute a limitation on consortium omnis vitae. Other cases of imprisonment must adduce irretrievable breakdown…..

 

Sec 5: Incurable mental illness / continues unconsciousness: These grounds of divorce sets specific rules that needs to be proven when instituting a divorce action based on sec 5 of the divorce act.

 

Sec 5(1) – incurable mental illness

·                 Satisfied – admitted to institution as a patient in terms of reception order /state patient.

·                 Not unconditionally discharged for 2 years prior to divorce being instituted;

·                 No reasonable prospect that the person can be cured; 

·                 To proof incurability – require two psychiatrist reports (1 appointed by the court)

 

Sec 5(2) – continuous unconsciousness.

 

·                 Must be in state of unconsciousness as result of physical disorder.

·                 At least 6 months prior to divorce being instituted;

·                 No reasonable prospect recover

·                 Proof aforesaid by having two doctors certify same. (One doctor appointed by court –neurologist).

 

Sec 5(3): empowers the court to appoint a legal practitioner to act obo the defendant and make a cost order.

 

Sec 5(4): provides that the court can request that security be furnish for any patrimonial benefit to which the defendant may be entitled.

 

Sec 9(2): forfeiture of benefits claim may not be ordered if marriage is dissolved on grounds of incurable mental/unconsciousness.

 

Maintenance: no provision for maintenance ito sec 5- can claim ito sec 7(2).

 

 

Divorce ito sec 4 instead of sec 5 – mental ill /unconsciousness:

 

·                 Because sec 5 has specific rules – question is can one choose to institute a divorce action ito sec 4 or 5?

·                 YES – sec 4 allows for the Plaintiff to escape stricter requirements as required ito sec 5.

 

 

Defenses against divorce action:

·                 has to rebut allegations

·                 can ask to postpone ito Sec 4(3) to try and reconcile

 

Does a court have the discretion to refuse decree order?

 

·                 “May” sections 3, 4 and5. –have discretion to refuse order. Smit v Smit

·                 Schwartz v Schwartz = does not have discretion.

·                 Levy v Levy = confirmed view –no discretion if one ground of divorce is proven.

·                 Sec 5A is only applicable to parties that has additional to a civil marriage also entered into a religious marriage.

·                 Sec 5A –applicable to not only civil marriage but also religious marriages.

·                 On dissolution – civil marriage is dissolved but not religious marriage unless dissolved ito religious rules.

·                 Reason for Sec 5A is to bring relief to eg. Jewish women where the husband is refusing to grant her a religious divorce.

·                 Amar v Amar (Jewish) – issued divorce decree but ordered to pay maintenance to his wife until marriage was terminated by the granting of a get (religious divorce).

·                 Is Sec 5A – a violation of right to equality? As treat spouses in religious marriages different from other spouses.