Lecture 13

Question 1

Dissolution of marriages

Answer 1

1) Death
2)Annulment
3)Presumption of death order
4)Divorce

Question 2

Divorce Act 70 of 1979

Answer 2

Applicable to:
1)civil marriages
2)civil unions
3)customary marriages (some sections only)
4) Muslim marriages (WLCT-case)

Question 3

Section 3 of the Divorce Act

Answer 3

A marriage may be dissolved by a decree of divorce on the following three
gounds-
(1) the irretrievable breakdown of the marriage as contemplated in section 4;
(2) the mental illness of a spouse as contemplated in section 5(1); and
(3) the continued unconsciousness of a spouse as contemplated in section 5(2)

Question 4

Section 8(1) of the RCMA

Answer 4

Provides for only one ground for dissolution of a customary marriage –
irretrievable breakdown

Question 5

DIVORCE ACT
Section 4
1) Irretrievable breakdown

Answer 5

DIVORCE ACT
Section 5
1) Mental illness
2) Continuous unconsciousness

Question 6

Schwartz v Schwartz 1984

Answer 6

Held that court must look at history of relationship and present attitude of parties

Question 7

Naidoo v Naidoo 1985

Answer 7

History=Objective test and Attitude=subjective test

Question 8

Section 5(1): Mental Illness

Answer 8

1) Defendant admitted as a
patient to a specified institution;
2) Continuous period of at
least 2 years;
3) Evidence of at least 2
psychiatrists

Question 8

Section 5(2): Unconsciousness

Answer 8

1) Defendant by reason of a
physical disorder in state of unconsciousness;
2) Continuous period of at least 6 months;
3) Evidence of at least 2
medical practitioners

Question 8

Swart v Swart 1980

Answer 8

No longer a wish to continue with the marriage relationship, supported by adequate reason for that wish and the conduct of the parties

Question 9

Special arrangements:

Answer 9

1) Legal representation & security
2) No forfeiture order allowed
3) Maintenance order may be granted

Question 10

Is it possible to obtain a decree of divorce in terms of section 4 if mental illness or unconsciousness (as provided for in section 5) caused the breakdown of the marriage?

Answer 10

Yes
1) Dickinson: ratio decidendi
2) Krige v Smit: obiter dictum
3) Ott v Raubenheimer: obiter dictum

Question 11

Defences against an action for divorce
In other words how can a spouse try to prevent court from granting divorce order?

Answer 11

1. Can claim breakdown not irretrievable or requirements ito s 5(1) and (2) cannot be satisfied
2. Can claim there is a chance of reconciliation (but that is the same as claiming breakdown is not irretrievable)
3. Can claim union is voidable (in which case annulment order not divorce order
   must be granted).
4. Claim the union is void (in which case a divorce order is not appropriate.
   Divorce order can only be granted in respect of a valid union)

Question 12

Section 5A of Divorce Act:
Refusal to grant divorce

Answer 12

Protects Muslim Wives.

Question 13

Where does one go to get divorced:

Answer 13

1) DIY divorce at a Magistartes court (Must have a regional division)
When theres no children

Question 14

Uncontested divorce

Answer 14

Agreement plan between parties

Question 15

Contested divorce

Answer 15

No agreement between parties