FAMILY LAW 214
SU 7
THE TERMINATION OF MARRIAGE
Learning aims:
a) Indicate which grounds for divorce exist
b) Explain how the courts interpret “irretrievable breakdown”
c) Explain whether a court has a discretion to grant a divorce order
Prescribed material:
1) Swart v Swart 1980 (4) SA 364 (O)
2) Smit v Smit 1982 (4) SA 34 (O)
3) Schwartz v Schwartz 1984 (4) SA 467 (A)
WAYS IN WHICH A MARRIAGE MAY BE DISSOLVED/TERMINATED
• Terminating a marriage has important implications for the spouses and third parties
- On the one hand, the dissolution of the marriage has personal consequences that influence the status of the
spouses
- On the other hand, there are patrimonial consequences that deal with the division of the estates and other
financial matters
• Under the rules of SA family law – a marriage may be dissolved in 3 ways:
1. By the court setting aside a voidable marriage
2. By the death of one/both spouses
3. Through a divorce order
• According to s 14 of the Divorce Act (DA) the courts cannot grant a judicial separation order
• However, spouses may still reach an agreement to have separate households
- Such an agreement may also contain patrimonial provisions – such as the division of assets, the payment of
maintenance and arrangements concerning the care of and contact with minor children
TERMINATION OF MARRIAGE THROUGH DEATH
• Where one/both of the spouses dies – the personal consequences of the marriage automatically terminate
- i.e., death of one/both spouses terminates the marriage
1
, Presumption of death
→ A spouse whose husband/wife has disappeared and who wants to have the marriage dissolved must prove
the death of the other spouse
→ A common-law presumption of death order does NOT automatically dissolve a marriage
→ However, a spouse can bring a separate application in accordance with the Dissolution of Marriages on
Presumption of Death Act to have the marriage dissolved
→ Ito the Act – a court may declare that a marriage will be considered to be dissolved from a specific date
→ The court order is final
→ Even when it later appears that the missing spouse is still alive – the marriage will remain lawfully terminated
→ The purpose of this provision is to provide that a subsequent marriage will NOT be void if the missing
spouse reappears
• The patrimonial effects of the dissolution of the marriage through death depend on the MPS:
(a) If the spouses were married in CoP – the net joint estate is divided in half
➢ One half goes to the surviving spouse by virtue of the MPS
➢ The other half goes to the heirs of the deceased spouse
(b) If the spouses were married out of CoP and of profit and loss without accrual – any outstanding provisions
in the ANC must be executed
➢ The executor then distributes the estate of the deceased to the heirs
➢ The estate of the surviving spouse is NOT affected
(c) If the spouses were married out of CoP with accrual – the surviving spouse is due the share of the accrual to
which they are entitled ito the MPA, if any
➢ The deceased’s estate may have an accrual claim against the surviving spouse – in which case this
accrual claim will be paid to the deceased’s estate from the estate of the surviving spouse
➢ After the accrual claim has been paid – the executor of the deceased’s estate distributes the deceased’s
estate (or the remainder of the estate) to the deceased’s heirs
TERMINATION OF MARRIAGE THROUGH DIVORCE
A) GROUNDS FOR DIVORCE
• The Divorce Act (DA) currently regulates SA divorce law
• This Act had a major impact on the legal rules stipulating the circumstances under which a court may grant a decree
of divorce – i.e., on the legally accepted grounds for divorce
- Under common law, our divorce law was characterised by the fault principle This meant that in each divorce
case the court had to identity an innocent spouse and a guilty spouse
- The person identified as the “guilty” spouse often suffered severe patrimonial disadvantages
2
SU 7
THE TERMINATION OF MARRIAGE
Learning aims:
a) Indicate which grounds for divorce exist
b) Explain how the courts interpret “irretrievable breakdown”
c) Explain whether a court has a discretion to grant a divorce order
Prescribed material:
1) Swart v Swart 1980 (4) SA 364 (O)
2) Smit v Smit 1982 (4) SA 34 (O)
3) Schwartz v Schwartz 1984 (4) SA 467 (A)
WAYS IN WHICH A MARRIAGE MAY BE DISSOLVED/TERMINATED
• Terminating a marriage has important implications for the spouses and third parties
- On the one hand, the dissolution of the marriage has personal consequences that influence the status of the
spouses
- On the other hand, there are patrimonial consequences that deal with the division of the estates and other
financial matters
• Under the rules of SA family law – a marriage may be dissolved in 3 ways:
1. By the court setting aside a voidable marriage
2. By the death of one/both spouses
3. Through a divorce order
• According to s 14 of the Divorce Act (DA) the courts cannot grant a judicial separation order
• However, spouses may still reach an agreement to have separate households
- Such an agreement may also contain patrimonial provisions – such as the division of assets, the payment of
maintenance and arrangements concerning the care of and contact with minor children
TERMINATION OF MARRIAGE THROUGH DEATH
• Where one/both of the spouses dies – the personal consequences of the marriage automatically terminate
- i.e., death of one/both spouses terminates the marriage
1
, Presumption of death
→ A spouse whose husband/wife has disappeared and who wants to have the marriage dissolved must prove
the death of the other spouse
→ A common-law presumption of death order does NOT automatically dissolve a marriage
→ However, a spouse can bring a separate application in accordance with the Dissolution of Marriages on
Presumption of Death Act to have the marriage dissolved
→ Ito the Act – a court may declare that a marriage will be considered to be dissolved from a specific date
→ The court order is final
→ Even when it later appears that the missing spouse is still alive – the marriage will remain lawfully terminated
→ The purpose of this provision is to provide that a subsequent marriage will NOT be void if the missing
spouse reappears
• The patrimonial effects of the dissolution of the marriage through death depend on the MPS:
(a) If the spouses were married in CoP – the net joint estate is divided in half
➢ One half goes to the surviving spouse by virtue of the MPS
➢ The other half goes to the heirs of the deceased spouse
(b) If the spouses were married out of CoP and of profit and loss without accrual – any outstanding provisions
in the ANC must be executed
➢ The executor then distributes the estate of the deceased to the heirs
➢ The estate of the surviving spouse is NOT affected
(c) If the spouses were married out of CoP with accrual – the surviving spouse is due the share of the accrual to
which they are entitled ito the MPA, if any
➢ The deceased’s estate may have an accrual claim against the surviving spouse – in which case this
accrual claim will be paid to the deceased’s estate from the estate of the surviving spouse
➢ After the accrual claim has been paid – the executor of the deceased’s estate distributes the deceased’s
estate (or the remainder of the estate) to the deceased’s heirs
TERMINATION OF MARRIAGE THROUGH DIVORCE
A) GROUNDS FOR DIVORCE
• The Divorce Act (DA) currently regulates SA divorce law
• This Act had a major impact on the legal rules stipulating the circumstances under which a court may grant a decree
of divorce – i.e., on the legally accepted grounds for divorce
- Under common law, our divorce law was characterised by the fault principle This meant that in each divorce
case the court had to identity an innocent spouse and a guilty spouse
- The person identified as the “guilty” spouse often suffered severe patrimonial disadvantages
2
