Category Archives: Marriage law

Can a divorce order be refused?

Many victims of a divorce will tell you that divorce is a traumatic experience and one which, litigants finding themselves in such a position, want to finalize as quick as the initial marriage ceremony passed. A question which regularly surfaces during divorce consultations is whether a divorce order can be refused, either by the court hearing the divorce alternatively by the other spouse?

Section 3 of the Divorce Act 70 of 1979 (hereinafter referred to as “the Act”) provides that a court may grant a divorce order on the ground of irretrievable breakdown of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them. Section 4(3) of the Act, however, reads that if it appears to the court that there is a reasonable possibility that the parties may become reconciled by way of marriage counselling, the court may postpone the proceedings in order that the parties may attempt reconciliation.

It is the word “may” in section 3 of the Act which caused uncertainty to whether a divorce order may be refused by a court hearing the divorce. There have been conflicting judgements delivered by our courts in this regard. In the case of Schwartz v Schwartz the court a quo (the court hearing the divorce) refused a divorce order and found that the parties’ marriage has not irretrievably broken down and that the parties should ‘try again’. As one can expect, the husband was not satisfied with the order of the court a quo and the matter was taken on appeal. The Supreme Court of Appeal [Schwartz v Schwartz 1984 (4) SA 467 (AD)] found that a court does not have the discretion to refuse a divorce order, subsequent to finding that a marriage has irretrievably broken down. The Judge argued that if it was the intention of the legislature to impose such a discretion on a court hearing the divorce, the legislature would have made provision for certain circumstances under which a divorce may be refused. The aforesaid principle was confirmed in the Supreme Court of Appeal judgment of Levy v Levy 1991 (2) SA 614 (AD).

There is, however, one exclusion to the general rule set out supra, which is contained in section 5A of the Act. In terms of the aforesaid section a court may refuse a civil divorce if it becomes clear to the court that one party to the divorce may not be able to remarry as a result of their religion which provides that such a marriage must be dissolved in a certain manner. Under these circumstances a court may refuse the civil divorce until the court is satisfied that the person whom has the power to dissolve the religious marriage, has taken all necessary steps to have such a marriage dissolved.

Section 5A of the Act was specifically promulgated to come to the assistance of spouses (mostly the wife) whom are married in terms of Jewish or Muslim religion and in which only the husband can agree to a divorce.

Lastly, the question of whether your spouse can refuse a divorce. The case law in this regard read that if one party refuses to uphold the status quo (being married), it is prima facie proof of the fact that the marriage has irretrievably broken down and consequently a court cannot under such circumstances refuse a divorce order.

For any divorce queries, do not hesitate to contact our offices on (012) 361 5001.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein.  Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Wedding bells?

Every girl dreams of a fairy tale wedding.  The perfect husband, dress, venue and let us not forget, the ever popular “happily ever after.”  Unfortunately, the rising divorce rate provides a clear indication that married couples are far more likely to opt for divorce before reaching the “… until death do us part” bit of their marriage vows. Every year an inordinate amount of money is spent towards creating the perfect ceremony and reception. Ironically, almost no consideration is given to the consequences of the marriage.

Marriage is not a social event.  It is a legal action taken by individuals that affects, inter alia: (1) their personal status, (2) their contractual capacity, (3) their estates, (4) creates legal obligations between the spouses and (5) governs their external legal relationship with third parties.

The default marital dispensation is Married In Community of Property.  The estates (existing and future) of the spouses are joined into one estate.  Each spouse acquires an undivided half share in the now joint assets and the spouses are jointly responsible for all debts (existing and future), even if the debts are incurred by only one of the spouses.  The contractual capacity of the spouses are limited and insolvency or death of one of the spouses affects both the legal status and capacity of the other spouse as well as the joint estate.

Should the parties wish to change the default position, they may enter into an antenuptial contract and provide for a marriage dispensation being either: (1) Out of Community of Property without the Accrual System or (2) Out of Community of Property with inclusion of the Accrual System.

Out of Community of Property without the Accrual System is the polar opposite of a marriage in community of property. The estates (existing and future) of the spouses remain separate and the contractual capacity of the spouses remain unaffected.  Insolvency of one spouse does not affect the status, capacity or estate of the other spouse.  However, this dispensation creates the potential for severe disparity to develop in the estates of the spouses that may give rise to social injustice and financial hardship.  Also, the surviving spouse does not automatically share in the estate of a deceased spouse, unless specifically provided for in a valid will.

The inclusion of the Accrual System to the Out of Community of Property dispensation is an attempt to address the social injustice and hardship by combining elements of both dispensations.  The same considerations as set out for a marriage Out of Community of Property without the Accrual System will apply, right up to the dissolution of the marriage by either death or divorce.  On dissolution of the marriage, the accrual system activates and provides that the estate of the spouse with the least accrual is entitled to half of the value of the difference in the accrual of the respective estates.  In theory, this should create parity and place both estates on an equal financial footing.

A word of caution: For the antenuptial contract to apply, the contract must be: (1) executed in writing, (2) before a Notary Public, (3) before date of marriage and (4) registered with the Registrar of Deeds within three months of the date of execution.

For any of your antenuptial contract needs do not hesitate to contact Delport van den Berg Inc. on (012) 361 5001 as we have no less than 3 notaries to assist you.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein.  Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)