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Summary Family law
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Summary of 10 pages for the course Family Law at wits (family law notes)
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Family Law: Topic 11Divorce
The Divorce Act 1979 regulates divorce and its consequences. Unlike the old divorce law – where the fault principle
played a significant role in the granting of a divorce, the current divorce act provides for three no-fault grounds for
divorce.
Divorce as a Widespread Social and Legal Practice
Divorce has become widespread, there are many reasons.
Women are financially emancipated and don’t need to stay if they’re unhappy.
There is not as much of a stigma attached to marriage as there was in the past, so there is no social pressure to
stay.
People marry for love, they have high expectation and when their passion lessens they move on.
South Africa has a high divorce rate, probably because it is very easy to get divorced here.
There is no compulsory waiting period, no-fault grounds for divorce and simple and inexpensive processes at
magistrates’ and Family Courts (Cape Town, Durban, Joburg).
Any spouse can claim for maintenance – depending on whether they need it.
Spousal maintenance is different to child maintenance – spouse must prove they need it.
Purpose of Divorce Law
Divorce law aims at minimising the harm on families and to promote social stability, the best interest of the
children, equitable financial measures to protect spouses and children.
Promote Social Stability
◦ The CC has identified family as the core social institution in a stable state.
◦ Therefore, it is in the interest of the state and society to promote happy families.
◦ In the past, the law tried to protect the family by preventing divorce unless there was adultery or malicious
desertion and the guilty party was punished.
◦ Fault-based divorce was realised to be problematic in the 60s, after governments saw that sometimes
neither spouse is to blame, but courts couldn’t issue divorces without fault.
◦ This was questioned as forcing couples to stay together actively prevented new happy families from
forming.
Protect Economic Interests of Spouses
◦ Running two households is very expensive, so divorced families usually have less money.
◦ Women are often victims of this.
◦ The court tries to divide property fairly to ensure economic sufficiency.
Protect the Best Interests of the Children
◦ Divorce is difficult for everyone involved, especially children.
◦ More than half of divorces are of parents of minor children.
◦ Family law aims to minimise the effect on children and act in their best interest.
Provide Divorce Procedures that are Efficient and Inexpensive
◦ It’s useless to drag out the process and fight over every cent.
◦ The state ensures that rules protect economically vulnerable spouses, even though it is preferable that
these matters are dealt with out of court.
◦ The court must be able to be involved in order to respond to all circumstances.
Provide Divorce Procedures that do not Escalate Hostility
◦ Especially when children are involved, spouses will have financial and personal relationships. It is in
everyone’s best interest to keep it civil.
, Grounds for Divorce (section 3) – Divorce Act
Section 3 of the divorce act sets out the grounds for divorce - Grounds for Divorce According to the Act:
Section 3: Court can grant decree of divorce on only two grounds.
Section 4: Irretrievable Breakdown of Marriage.
Section 5: Mental Illness or Continuous Unconsciousness.
The court shouldn’t waste time considering whether a divorce should be granted.
Shifting from Fault-Based to No-Fault Based
◦ Before the Divorce Act of 1979, there had to be a marital fault to qualify for divorce.
◦ The innocent spouse would sue the other, if they chose not to the guilty spouse would be forced to remain
in the marriage.
1. Irretrievable Breakdown of Marriage – S4(1)
◦ A spouse suing for divorce must prove that the relationship has disintegrated so far that it isn’t a normal
marriage relationship and that there is no reasonable prospect of restoring a normal marriage relationship.
◦ A normal marriage relationship refers to the consortium omnis vitae.
Schwartz v Schwartz Dr Schwartz wanted to sue before the 1979 Divorce Act but was advised against it as he was at
fault. The Act allowed him to sue on the grounds of s4(1). The Transvaal Provincial Division held that this, and that he
was living with another woman, was not enough to consider the breakdown to be irretrievable. Mrs Schwartz still
loved him and they had a lot in common. It thought that refusing divorce would drive the other woman away and
bring him back to the marital home. The AD disagreed, holding that it is inappropriate for a court to speculate about
what might happen – its job is to see if a normal marriage relationship can be restored. It held that both the subjective
views of spouses and objective circumstances must be investigated in order to determine irretrievable breakdown.
The AD looked at the history and Dr Schwartz’s wishes not to be married and concluded that the relationship could
not be rebuilt.
Naidoo v Naidoo It is important for the court to consider the subjective views of spouses while remaining objective.
A claim of irretrievable breakdown must be proven with facts of events and conduct to show that the relationship is
unsalvageable.
◦ Until 1985 there were many cases surrounding the irretrievable breakdown.
◦ The courts concluded that when both parties agree that they don’t want to be married anymore the
marriage is irretrievably broken down.
◦ If one spouse does not want to divorce the courts can still grant based on the fact that if the other wants to
the normal marriage relationship will not be restored.
Listed Circumstances Indicating Irretrievable Breakdown – S4(2)
◦ Subject to s4(1), the following proof can be brought to prove irretrievable breakdown:
1. Haven’t lived together for a year before the divorce action.
2. Adultery that the other spouse cannot reconcile with.
3. One is declared by the court to be a habitual criminal and is undergoing imprisonment.
◦ These mirror the fault-based system of grounds for divorce.
◦ However, they are not grounds but ways to prove that the marriage has broken down irretrievably and
cannot return to a normal marriage relationship.
◦ The court must be satisfied of this, if not it may not grant the divorce.
◦ Even if the couple has not lived together for at least a year or one spouse committed adultery, the court can
still refuse to grant the divorce if they are not satisfied.
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