The dissolution of the marriage

Question 1

In which ways can a marriage be dissolved in South Africa?

Answer 1

1. Divorce
2. Death of one or both spouses
3. Annulment of a voidable marriage
4. Presumption of death

Question 2

Which act regulate the law of divorce?

Answer 2

Divorce Act 70 of 1979

Question 3

Why should the people not say that divorce is too easy to be obtained?

Answer 3

Because the objective of the law of divorce is not to save a marriage.

Question 4

What is the object of the divorce law according to the SA law commission?

Answer 4

It is to lay down a realistic and effective rules of dissolving a marriage, in accordance with the needs of the society and in an orderly fashion.

Question 5

What are the functions of the divorce law?

Answer 5

to determine:
1. On what grounds can a couple get divorced
2. What are the consequences once the divorce is granted?

Question 6

Based on old laws, on what ground was a divorce granted?

Answer 6

1. Based on on the fault principle

Question 7

Which common laws grounds were recognized for divorce?

Answer 7

1. Adultery
2. Malicious desertion

Question 8

Which statutory grounds are recognized for divorce? ( after 1935)

Answer 8

1. Incurable mental disease
2. Habitual criminality

Question 9

Which section created the three ground of divorce?

Answer 9

Section 3

Question 10

What are the 3 grounds of divorce stipulated in S3 of the Act?

Answer 10

1. Irretrievable breakdown
2. Mental illness
3. Continuous unconsciousness

Question 11

Which section contemplates irretrievable breakdown?

Answer 11

Section 4

Question 12

Which section contemplates mental illness and continuous unconsciousness?

Answer 12

Section 5

Question 13

What does section 4(1) says about irretrievable breakdown?

Answer 13

A court may grant a decree of divorce on the ground of the irretrievable break-down 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

Question 14

According to Swartz v Swartz how should a subjective enquiry be conducted?

Answer 14

To check the present attitudes of the parties. (When one of the parties no longer wishes to continue with the marriage)

Question 15

According to Swartz v Swartz how should an objective enquiry be conducted?

Answer 15

The reasons of the breakdown must be judged objectively

Question 16

What was decided in Coetzee v Coetzee?

Answer 16

That the marriage relationship must have deteriorated. (This decision is not well supported)

Question 17

What are examples of irretrievable breakdown? S4 (2)

Answer 17

1. The spouses have not lived together as husband and wife for at least one full year right before starting the divorce case
2. The defendant has committed adultery
3. The defendant has been declared an habitual criminal and is undergoing imprisonment as a result.

Question 18

When can divorce proceedings be postponed? S4 (3)

Answer 18

If it appears to the court that there there is a reasonable possibility that the parties may become reconciled through marriage counsel, treatment or reflection.

Question 19

Does the court have the discretion to grant or refuse a decree of divorce?

Answer 19

No, this was held in Swartz v Swartz however there is an exception to this rule.

Question 20

When can a court grant a decree of divorce on the grounds of mental disease?

Answer 20

That the defendant in terms of Mental Health Act 18 of 1973:
1. has been admitted as a patient at an institution by reception order
2.has been detained as a state patient at an institution or any other place specified by the minister of correctional service
3. is a mentally ill prisoner in an institution, has been in that condition for at least 2 continuous years before the divorce case began, AND has not been released unconditionally from that status.
4. The court heard evidence from two psychiatrists—one chosen by the court—who both confirm that the defendant is mentally ill and that there is no reasonable chance of recovery.

Question 21

When a court grant the decree of divorce on the ground of continuous unconsciousness?

Answer 21

If it is satisfied that:
1. The defendant (spouse) has been unconscious for at least 6 continuous months, before the case started
2. after having heard the evidence of at least two medical practitioners, (of whom one shall be a neurologist or a neurosurgeon appointed by the court), that:
there is no reasonable prospect that the defendant will regain consciousness.

Question 22

Must the strict requirements of section 5 always be complied with, or can a spouse whose spouse (for example) suffers from mental illness instead obtain a divorce order on the basis of section 4 (irretrievable breakdown of marriage)?

Answer 22

The case of Smit v Smit clarified that a marriage can be dissolved under Section 4 due to irretrievable breakdown, even if the cause is a physical illness not specified in Section 5

Question 23

Which courts are competent to hear a divorce action?

Answer 23

According to section 1 of the Divorce Act, a “court” includes a High Court, and a Regional division of the Magistrates Court.

Question 24

What does S2 (1) of the Divorce Act says?

Answer 24

A court shall have jurisdiction in a divorce action if the parties are (or EITHER of the parties is:
1. Domiciled in the area of jurisdiction of that court on the day the divorce action is instituted
2. Ordinarily resident in such area and have been resident in the RSA for at least 1 year immediately to the institution of the divorce action.

Question 25

What is a divorce action?

Answer 25

An action by which a decree of divorce or other relief in connection therewith” is applied for

Question 26

What else does the definition of the divorce action includes?

Answer 26

1. maintenance 2. contribution towards cost 3. an application pendente lite for an interdict, maintenance.

Question 27

what is “Pendente lite?

Answer 27

It means pending legislation. For example, maintenance pendente lite means temporary financial support one spouse may get from the other during the divorce process, until the court decides on permanent support.

Question 28

How does Section 5A apply to religious marriage?

Answer 28

Section 5A applies to religious marriages by preventing one spouse from using the need for a religious divorce (like the Jewish “get”) to unfairly delay or manipulate the divorce process, ensuring that such religious requirements cannot be used to gain an unfair advantage in matters like property division or child custody. This protects the rights of the other spouse and stops abuse of the system.

Question 29

what's a get?

Answer 29

A divorce bill

Question 30

What are the 2 branches of Judaism that exist in SA?

Answer 30

Orthodox Judaism Reform movement (abolished religious divorce)

Question 31

What are the consequence of the religious marriage if they don't perform religious divorce?

Answer 31

1. the wife’s second marriage is regarded as ADULTEROUS, and 2. her children born from the second marriage are regarded as being born of unmarried parents according to Jewish law. 3. The wife will be regarded as an agunah 4. The orthodox rabbi will refuse to conduct the second marriage 5.

Question 32

What are Mamzerim children?

Answer 32

Illegitimate

Question 33

Can the Mamzerim children marry any Jewish?

Answer 33

they are prohibited from marrying: i) Orthodox, or ii) Conservative Jews. They may only marry other mamzerim, or converts to Judaism.

Question 34

What is meant by agunah?

Answer 34

chained woman

Question 35

What about children of jewish man?

Answer 35

They will be fine, the man can marry if the wife doesn't want t o cooperate

Question 36

What are the developments of the Jewish divorce?

Answer 36

At the time of the SA law commission's investigation, it seemed to be a common trend for Jewish marriage to not proceed with a Jewish divorce after a secular divorce.

Question 37

What are the reasons for the Jewish marriages to not proceed with a Jewish divorce?

Answer 37

1. One of the spouses may have disappeared or spitefully refuse to receive or deliver a get which is a problem because without the get, the spouses will still be regarded as married even if they completed a secular divorce. 2. Jewish husbands tended to be in a better position than their wives. As such, they regularly abused divorce negotiations to obtain favourable property or custody settlements. The wife then had the choice of either giving in to the demands, or refusing to give in and thus becoming an agunah

Question 38

Which court in SA can issue a decree of divorce?

Answer 38

A secular court

Question 39

Why was section 5A included in the Divorce Act?

Answer 39

This was because the was no legal provision for a get. (religious divorce)

Question 40

According to S5A when can a court refuse to grant a decree of divorce?

Answer 40

If it appears to the court that despite granting a civil divorce, one or both of the spouses will not be free to remarry because of the rules of their religion—unless: 1. The marriage is also ended according to those religious rules (e.g., by delivering a Jewish get), or 2. A religious barrier to remarriage is removed (such as a spouse refusing to release the other religiously)

Question 41

When a court grant a decree of divorce in terms of S5A for religious marriage?

Answer 41

1. The spouse who has the power to end the religious marriage or remove the barrier has taken all necessary steps to do so 2. The court may make any other order it finds fair and just under the circumstances.

Question 42

Which case can be used as reference to Section 5A?

Answer 42

Amar v Amar

Question 43

What is the purpose of Section 5A

Answer 43

To prevent one spouse from using religion as a reason by refusing to cooperate in a religious divorce (like giving a get), which could trap the other spouse and stop them from remarrying.

Question 44

What was the finding in the case of amar v amar?

Answer 44

* The Court, by applying section 5A, found that it may make any order which it deems just.

Question 45

What can the court order in cases like this?

Answer 45

Courts may order consequences—for example, making the refusing spouse pay monthly maintenance (even if the other spouse isn’t normally entitled to it), until they cooperate and the religious divorce is granted.