key to the study guide - Name

Three examples
Separation for at
least one year
(4) According to Cronje and Heaton the correct approach is that applied
in the Schwartz and Naidoo cases, namely that the objective as well as
the subjective approach must be used to determine not only whether
the marriage relationship has broken down, but also whether such
breakdown is irretrievable.
3.3 The guidelines in section 4(2)
In addition to the criteria contained in section 4(1) of the Divorce Act,
section 4(2) of the Act provides three examples of situations which may
indicate that a marriage has broken down irretrievably. These three
examples are discussed on pages 121±122 of the textbook under the
heading ``11.2.2 The guidelines in section 4(2)''. You need not study
the particulars given there. Only study the information given below on
these three guidelines. They are
(1) the fact that the spouses have not lived together as husband and wife
for a continuous period of at least one year immediately prior to the
date of the institution of the divorce action
(2) the fact that the defendant has committed adultery and that the
plaintiff finds it irreconcilable with a continued marital relationship
(3) the fact that the defendant has been declared an habitual criminal by a
sentence of a court of law, and that he or she is serving a prison
sentence as a result of this sentence
Please note that these examples are mere guidelines. Firstly, they are not
the only proof of irretrievable breakdown of the marriage, and, secondly,
they are not necessarily conclusive proof of irretrievable breakdown of the
marriage.
In respect of the first guideline, two important aspects must be noted,
namely:
(1) When a spouse relies on this guideline only, he or she will have to
prove that there has been no cohabitation for an uninterrupted
period of at least one year.
(2) The separation refers to termination of consortium between the spouses
and not to geographic separation. It is therefore not necessary to prove
that the spouses are not living in the same house or even in the same
room. Once the consortium between the spouses has been terminated
for longer than one year, this guideline has been met.
161