CHAP 8: DISSOLUTION OF MARRIAGE/DIVORCE

Question 1

DIVORCE BY DEATH: PATRIMONIAL EFFECTS

Answer 1

• if the spouses were IN C.O.P, the surviving spouse will get his/her rightful share then the rest will go to heirs
• if spouses were OUT C.O.P w/o profit & loss accrual, only the heirs benefit from the estate
• if there was marriage OUT C.O.P with accrual, the surviving spouse will get the accrual share & if she/he owed the testator then the benefit will go to heirs
• if there was no valid will the the Intestate Succession Act will be put in place

Question 2

GROUNDS FOR DIVORCE

Answer 2

accord to the Divorce Act, divorce can be instituted once there is:

irretrievable breakdown of marriage as in s4(1)

if there is mental illness or continuous unconsciousness as in s5

behavior of a spouse still plays a minor role

Question 2

SECTION 4: IRRETRIEVABLE BREAKDOWN

Answer 2

accord to the Divorce Act, allows divorce to happen on grounds that the marriage has no possibility of being restored

this is subject to lack of consortium omnis vitae & the likes

in Schwartz v Schwartz, the SCA contended that a subjective & objective enquiry need to be placed during divorce to determine the common agreement that the marriage is irretrievably broken down & the history & circumstances that surround marriage

consensual divorce does not apply, only divorce on request applies

Question 3

SECTION 5: MENTAL ILLNESS & UNCONSCIOUSNESS

Answer 3

for mental illness, there has to be proof that the respondent is admitted in an institution, or as an ill-inmate or has never been released in 2 years or has no prospect to recover from mental health

for continuous unconsciousness due to physical disorder, the person needs to be unconscious for about 6 months & has no prospect to regain consciousness

this section does not apply to customary marriages

Question 4

PROTECTION OF MENTALLY ILL & UNCONSCIOUS PEOPLE

Answer 4

a legal practitioner is appointed for the ill person & the plaintiff is liable for costs

the plaintiff will be ordered to protect patrimonial benefits of the divorce for the respondent

Question 5

DEFENCES AGAINST DIVORCE

Answer 5

the court cannot withhold the proceedings but can postpone proceedings to get spouses to reconcile but proceed if this act is unsuccessful

the only marriage a court can refuse to allow divorce is a religious marriage as it needs to be done accord o religious laws which will enable the parties to remarry

Question 6

JURISDICTION IN DIVORCE PROCEEDINGS

Answer 6

divorce can take place in High Court

regional magistrates also have jurisdiction but both parties need to be domiciled there on the date of divorce & must be there for no less than a year