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Sterility, infertility and impotence as grounds for the annulment of a marriage

I have had many clients who have consulted me and advised me that in their matrimonial life the couple has been unable to conceive a child. This could be due to a biological problem on the part of either the man or the woman. In my opinion this is definitely a factor which can lead to the irretrievable breakdown of the marriage. Parties very often get married with the aim of having children, and if they are not able to do so they see no way out but to get divorced. Some couples adopt children, but most couples want their own biological child.

I once had a female client who consulted me. Her husband had quite a good job, but she was unable to conceive a child. Her husband had apparently spent over R100, 000.00 on fertility treatment. She had been for several sessions but was still unable to conceive a child. She had actually suffered two or three miscarriages in the space of two years. The parties were constantly arguing as a result of this, and decided to get divorced.

The question of sterility has also come up in our case law on several occasions. In the case of Van Niekerk v Van Niekerk 1959 4 SA 658 (GW), the man sued his wife for divorce. He subsequently however applied for an annulment of the marriage as a result of his wife’s sterility before the marriage. The husband was unaware of the fact that his wife had had an operation before the marriage and was sterile. She was permanently incapable of having children.

In the abovementioned case the judge had to look at what the legal position was in the Roman-Dutch law in coming to his conclusion. In Roman-Dutch law impotentia procreandi, which means the inability to procreate, was a ground for setting aside a marriage if the defect existed at the time of the marriage (annulment). The judge found that this is the position also in South African law.

In my opinion good sexual relations between the parties builds the foundation for a strong marital relationship. I have also had a few cases where a man has consulted me and advised that he is impotent and cannot engage in sexual relations with his wife. This state of health is occasionally accompanied by other illnesses such as diabetes. In these cases the man is normally above the age of 50 though.

In one of my cases recently the woman alleged that my client had advised her that he had erectile dysfunction, but that he had lied to her and actually had conceived a child during the marriage of which she was not the biological mother. My client on the other hand no doubt denied that he had ever told her that he had erectile dysfunction, but no doubt admitted that he had engaged in an extra martial affair.

I have very often heard people saying that “the aim of marriage is to procreate”. This is no doubt a personal opinion. A couple in a gay marriage would obviously disagree with that statement. However, it is certainly a big part of most marriages to procreate, and issues of sterility, fertility and impotence very often do arise in South African divorce law.

article written by Cape Town divorce law specialist, Peter M Baker


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