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Criteria contained in subsections 5(1) and 5(2) of Act 162 4 DIVORCE ON THE GROUND OF MENTAL ILLNESS OR CONTINUOUS UNCONSCIOUSNESS Ð SECTION 5 Two further grounds for divorce, namely mental illness and continuous unconsciousness, are dealt with in section 5 of the Divorce Act 70 of 1979 and discussed on pages 122±124 of the textbook. The circumstances which the plaintiff must prove in order to obtain a divorce on the ground of the defendant's mental illness (s 5(1)) or continuous unconsciousness (s 5(2)) are clearly set out in your textbook on pages 122±123. You must know what these circumstances are. 5 THE CONNECTION BETWEEN SECTION 4 AND SECTION 5 This matter is discussed only briefly on page 123 of your textbook under the heading ``11.3.2 Divorcing a mentally ill or unconscious spouse in terms of section 4 instead of section 5''. However, it is discussed in detail on pages 196±197 (the note on Smit v Smit) of your prescribed casebook. You must study this section of your casebook carefully. Make sure that you know what the issue is and how this issue was addressed in Dickinson v Dickinson, Krige v Smit, Smit v Smit (a quo and full bench decisions) and Ott v Raubenheimer. In this regard you must also know the points of view of Barnard and Hahlo. ACTIVITY Mr and Mrs Naidoo married five years ago. While on a mountain climbing expedition three years ago, Mrs Naidoo fell from a mountain ledge and hit her head against a rock. Mrs Naidoo has been unconscious since then. Mr Naidoo now wants to divorce Mrs Naidoo. Mr Naidoo asks you if he can apply for a divorce in terms of section 5(2) of the Divorce Act 70 of 1979, or whether he can also make use of section 4 of the Act. Advise Mr Naidoo about this. Substantiate your answer by referring to authority. FEEDBACK This matter deals with the connection between sections 4 and 5 of the Divorce Act 70 of 1979. There are many other circumstances which can lead to the irretrievable breakdown of a marriage, which are not provided forbysection5oftheAct.Inthecaseofmentalillnessandcontinuous unconsciousness the legislature thought it fit to lay down certain rules. Consequently the question arises whether the requirements of section 5 always have to be complied with if one of the spouses is mentally ill or unconscious or whether the applicant has a choice of using section 4 or section 5.
This question has often been raised in the courts and conflicting decisions have been made. In Dickinson v Dickinson the plaintiff's wife had been committed as a mental patient for more than two years. The plaintiff had instituted an action for divorce in terms of section 4. The court decided that section 4 can indeed be applied. In Krige v Smit, the plaintiff's husband had been in a semi-unconscious state for nearly two years. She sued him for divorce in terms of section 4 and alternatively in terms of section 5. The court granted a divorce order in terms of section 4 but tried to give section 5 its own place and function. The court found that section 5 facilitates the onus of proof which rests on the plaintiff by specifying all the elements which have to be proved. Section 5 also facilitates the task of the court when granting a divorce order since the court need only look for the presence or absence of the factors mentioned in the section. In these cases (where the spouse who is sued for divorce is mentally ill or unconscious) the court need not investigate the facts and the possibility of whether the spouses' marriage relationship can be restored. The wide interpretation followed in Dickinson v Dickinson and Krige v Smit, was rejected by the court aquoin Smit v Smit. The court in the latter case decided that in cases where one of the spouses is mentally ill or unconscious, a divorce can only be granted in terms of section 5. On appeal to the full bench this decision was reversed. In Ott v Raubenheimer, where the defendant against whom the divorce action was instituted was also mentally ill, the court once again granted the divorce order in terms of section 4. It would appear from case law that a plaintiff (Mr Naidoo in this case) can indeed use section 4 in order to obtain a divorce order in cases where the defendant (Mrs Naidoo in this case) is mentally ill or, as in the case in question, unconscious. It is still uncertain whether he or she can rely only on section 4 if all the requirements for section 5 have not been complied with and if he or she has the choice of using section 4, even though the situation falls entirely within the scope of section 5. Barnard apparently feels that the plaintiff cannot choose to use section 4 if all the elements of section 5 are present, but that he or she will have to make use of section 5. Hahlo's view is different. According to him the marriage relationship between spouses where one of the spouses is mentally ill or unconscious in terms of section 5, apparently has also broken down irretrievably in terms of section 4. According to Hahlo a divorce order can thus be granted in terms of section 4 even though the situation falls fully within the scope of section 5. 163
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iv 17 Forfeiture of patrimonial ben
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vi Ð analyse and critically evalua
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The content of this module can be g
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x Bibliography CronjeÂ DSP & Heato
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xii guide you are told what to read
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Glossary
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ad litem for the case or suit affid
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descendants your descendants are th
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legislation things like Acts, procl
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e in connection with or in the case
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void marriage a marriage which has
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2 SECTION I Introduction to family
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4 STUDY UNIT 1 In preparation MODUL
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Order in which authoritative source
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8 South Eastern Cape local division
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10 without qualification. Where a p
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12 2.4 The magistrates' courts and
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14 STUDY UNIT 2 Content of family l
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Wide and narrow meaning 16 branches
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18 STUDY UNIT 3 Historical overview
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20 HAVE YOU READ THE ``KEY TO THE S
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22 Engagement SECTION II Marriage l
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24 Engagement STUDY UNIT 4 The enga
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Distinction between engagement and
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28 in the missing words. The words
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ACTIVITY This activity tests your u
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Lawfulness and possibility Finalisa
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ACTIVITY On page 12 of your prescri
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36 engagement, the courts calculate
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Action on ground of seduction 38 FE
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40 fallen in love with another woma
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42 marriage itself. First of all yo
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Prodigal Insane person Person place
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had been so threatened and assaulte
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Adoptive parent and adopted child P
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Common ancestor prospective spouses
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Engagement STUDY UNIT 6 The civil m
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60 INSTANCES PERSON/PERSONS/AUTHORI
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62 antenuptial contract, the questi
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64 (2) Whose consent is needed if a
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66 LEARNING OUTCOMES The purpose of
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(3) When only can a man apply for t
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70 ACTIVITY Place each of the follo
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Legitimacy of a child born of a put
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74 Engagement STUDY UNIT 8 The inva
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Variable versus invariableconsequen
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Maintenance = support Meaning of ``
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Requirements for capacity Terminati
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Revocation or limitation of the cap
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84 FEEDBACK This statement is false
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86 (16) Discuss the concept ``house
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Matrimonial property law Section II
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OVERVIEW In section III we look at
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Primary matrimonial property system
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3.1 Assets Joint assets In your pre
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Jacob also exchanges the tractor wh
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Attachment of separate assets FEEDB
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Debts incurred during the subsisten
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QUESTIONS NB: Make sure that you ca
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Marriage in community of property N
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Equal concurrent management Section
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lawfully since Mr Khumalo's written
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Page 157 and 158: ACTIVITY Provide a summary of the s
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Page 163 and 164: Marriage in community of property N
Page 165 and 166: Relaxation of principle of immutabi
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212 . Access (16) What does the con
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214 LEARNING OUTCOMES The purpose o
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Limitation on publication Exception
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218 SUMMARY In this study unit you
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Customary marriages concluded befor
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Customary marriages concluded befor
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Invalid ito common law Valid ito Ac
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Position before commencement of the
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Ground for divorce Patrimonial cons
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Customary law part of culture Custo
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232 . Registration of the marriage
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234 . how a customary marriage can
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236 SECTION VI Muslim marriages MOD
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238 (2) set out the legislative rec
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240 surviving spouse in a monogamou
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242 and Muslim marriages constitute
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Life partnerships Section VII
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STUDY UNIT 24 Life partnerships MOD
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2 GENERAL The general rule of our l
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espectively, certain job-related be
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. Definition (1) What is a life par
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256 SECTION VIII Domestic violence
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(3) indicate that in terms of the D
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260 In the next section we deal wit
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262 SECTION IX Children's rights an
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264 STUDY UNIT 26 Children's rights
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Ways to obtain authority 266 regula
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Wide and narrow meaning Guardianshi
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Meaning of judicial interference it
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272 (2) Which special rights are gi
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274 . what parental power is . how
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In this study unit we shall look at
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In Petersen v Maintenance Officer t
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280 (7) Does a stepparent have a du
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282 SECTION X Guardianship and cura
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284 You will further note in this s
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Definitions 286 1.2 The requirement
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288 QUESTIONS NB: Make sure that yo
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