How to find a divorce lawyer in Cape Town, South Africa

Desertion and divorce

Very often in divorce matters it gets alleged by one of the parties that the other party deserted them. The reasons for the breakdown in the marriage are merely mentioned in the court papers, but when the parties have a roundtable meeting with their attorneys, and the emotions are running high, the two parties very often throw allegations at each other in the heat of the moment.

I recently had a case where the couple were living together in Cape Town. The man had begun an extramarital affair with a lady in Johannesburg whom he had met through a business relationship initially. One day he just packed his belongings, and flew to Johannesburg to move in with this lady. To continue his affair, he left his wife and minor child at the flat in Parklands, Cape Town, without affording any explanation.

I advised my client in this case in her Particulars of Claim to allege that she had been deserted by her husband, and in her papers we asked for him to continue paying maintenance for her, the child, as well as all medical and school fees, and that the property be sold and the proceeds divided equally. Originally in their opposing papers the other side contested the amount of maintenance which we sought on the grounds that it was exorbitant. Certain other things were also contested.

I however urged my client, who was unemployed, to stick to her guns, as a court would clearly on the facts come to the conclusion that she had been deserted and award her a substantial amount of maintenance. The man even flew down from Johannesburg to attend the court case. Eventually just before the matter went to court my client’s husband and his attorney agreed to what we initially requested in our Summons.

I was particularly happy at the outcome of this case, as desertion is a very serious ground for the breakdown in the marriage, and I felt that my client was righteously compensated.

An interesting court decision in our law reports dealing with desertion was that of Chamani v Chamani 1979 4 SA 804 (W). In this case the wife had left her husband and applied for a contribution towards her legal fees. She at no time offered to return to her husband. The court had to decide whether the husband’s duty of support had been terminated by his wife’s desertion, and if this was the case he could no longer be held liable for a contribution towards her costs. The wife’s application was dismissed, and the court found that as a result of the wife’s desertion, the husband had no duty to contribute towards her costs.

There is a big difference between leaving your spouse when you have a legitimate reason and leaving them for no reason at all. A legitimate reason would be if there was some form of abuse, and you were left with no alternative but to walk out of the matrimonial home. It can however be seen as a form of desertion of you leave the matrimonial home for no particular reason, without endeavouring to resolve any matrimonial difficulties which may have existed. Our case law clearly shows that it can be held against you in a divorce case if you are found to have been the deserting party.

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

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