Lecture 13 Flashcards
Dissolution of marriages
1) Death
2)Annulment
3)Presumption of death order
4)Divorce
Divorce Act 70 of 1979
Applicable to:
1)civil marriages
2)civil unions
3)customary marriages (some sections only)
4) Muslim marriages (WLCT-case)
Section 3 of the Divorce Act
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)
Section 8(1) of the RCMA
Provides for only one ground for dissolution of a customary marriage –
irretrievable breakdown
DIVORCE ACT
Section 4
1) Irretrievable breakdown
DIVORCE ACT
Section 5
1) Mental illness
2) Continuous unconsciousness
Schwartz v Schwartz 1984
Held that court must look at history of relationship and present attitude of parties
Naidoo v Naidoo 1985
History=Objective test and Attitude=subjective test
Section 5(1): Mental Illness
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
Section 5(2): Unconsciousness
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
Swart v Swart 1980
No longer a wish to continue with the marriage relationship, supported by adequate reason for that wish and the conduct of the parties
Special arrangements:
1) Legal representation & security
2) No forfeiture order allowed
3) Maintenance order may be granted
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?
Yes
1) Dickinson: ratio decidendi
2) Krige v Smit: obiter dictum
3) Ott v Raubenheimer: obiter dictum
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?
No (not applicable)
* Smit:obiter dictum
* Cannot circumvent s 5 by using s 4
Defences against an action for divorce
In other words how can a spouse try to prevent court from granting divorce order?
- Can claim breakdown not irretrievable or requirements ito s 5(1) and (2) cannot be satisfied
- Can claim there is a chance of reconciliation (but that is the same as claiming breakdown is not irretrievable)
- Can claim union is voidable (in which case annulment order not divorce order
must be granted). - 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)
Section 5A of Divorce Act:
Refusal to grant divorce
Protects Muslim Wives.
