Society at large seems to harbour the idea that our law is still based on the common law fault principle.
In terms of the Common Law, adultery and malicious desertion were initially the only two grounds for a divorce. In 1979 the divorce law was reformed by the introduction of two new acts, being the Dissolution of Marriages on Presumption of Death Act of 1979 and the Divorce Act 70 of 1979 (“the Act”). The Act essentially replaced the common law fault principle.
Section 3 of the Act introduced irretrievable breakdown as a ground for a divorce. Section 4 of the Act provides that a court may grant a decree of divorce on the grounds of irretrievable breakdown of a marriage, if it is satisfied that the marriage relationship has reached such a state of disintegration that no reasonable prospect exists for the restoration of a normal marital relationship.
What does the courts regard as an irretrievable breakdown of a normal martial relationship?
In Naidoo v Naidooo 1985 (1) SA 366 (T) the court held that a subjective and objective test must be applied. Subjective in that one of the parties might be of the opinion that the marriage can’t be saved and objective in that the court must be satisfied that a breakdown has occurred.
Section 4 (2) of the Act, inter alia, provides a catch all provision in that it provides the following:
“S 4(2) Subject to the provisions of sub section (1), and without excluding any facts of circumstances which may be indicative of the irretrievable breakdown of a marriage…”
It is therefore in the court’s discretion to determine on the subjective facts provided by the parties and objective facts pertaining to the reasonable prospect of restoration as to whether any prospect of the marriage being saved exists.
Unsure as to whether your marriage has broken down irretrievably or not?
Contact our offices for expert legal advice on this topic and for professional guidance to start the process, if needed.
Email: leonore@billtolken.co.za / sue-lynn@billtolken.co.za
Tel: 021 944 3011 / 021 944 3072
Web: http://www.billtolken.co.za
