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Divorce of marriage not broken down

 

A 2013 test case heard in the Freestate High Court, where a final divorce order was granted in order to save a marriage even though the marriage had not broken down irretrievably.

When drafting the plaintiff’s particulars of claim, the averment has to be made that the marriage has broken down irretrievably and cannot be saved. The attorney would then give the reasons for the irretrievable breakdown in the marriage, such as for example that there is no meaningful communication, the parties have lost love and respect for each other, and by virtue of this the one party has withdrawn from the other party.

Similarly, in the defendant’s counterclaim, an averment must be made that the marriage has broken down irretrievably, and the defendant must give reasons for the breakdown in the marriage. Each party is entitled to aver that they do not believe that the marriage has broken down irretrievably, and that with proper counselling the marriage can be saved.

When an attorney leads his or her client in evidence in court, one of the questions that must be asked is as to whether the marriage can be saved. If the answer to this question is yes, the court will grant the divorce. If the party giving evidence however hesitates while giving evidence, and says that he or she does believe that the marriage can be saved, the court will not grant a final order of divorce. The attorney must no doubt properly brief his or her client before they go into court on what questions will be asked in the court, and what the answers should be.

In a recent case in the Freestate High Court, the parties acknowledged that they loved each other but that being married was driving them apart, and that only a divorce could save their marriage. The court found that the wedding band was apparently precisely the additional stress in the parties’ relationship. The 29 year old man, a businessman, said that before the wedding the parties had had a much better relationship. The judge in this case was Corné van Zyl. Judge van Zyl was quoted as saying “I must say that in my years in practice as a lawyer, and later a judge, I have not had a situation like this”.

A judge can only grant a divorce order if he or she believes that the marriage has broken down irretrievably and cannot be saved. In this particular case the psychologist of the parties had agreed that if the parties had stayed married, it would not work between them. 

The parties claimed that the wedding band was hanging like a “burden” above their heads. The parties testified that they were not going to move out of their apartment if they got divorced. The 29 year old businessman and his 28 year old wife had resolved many of their issues with each other since the man had instituted action against his wife a year earlier. This was a 2013 case. There is always a fear that if there are problems in the marriage, the one party will run to a lawyer and threaten to separate. 

In the above case the psychologist agreed that divorce was a positive step in the right direction. Judge van Zyl said she accepted that the parties would not save their relationship while being married. Judge van Zyl actually stated that “It is strange circumstances, but I will give you the benefit of the doubt.  If it (the marriage) is such a big problem, I will give you the order.”

The above case is quite an interesting case. What makes the case interesting is that normally a marriage has irretrievably broken down at the time of divorce but that in this particular case the court actually allowed the divorce even though the parties were about to save their marriage by getting divorced. This case may be used as an example in future cases, as it is a unique situation where the court actually allowed the divorce even though on the facts it appeared that the marriage had not broken down irretrievably.

article written by Cape Town divorce attorney, Peter M Baker

 

 

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