key to the study guide - Name

Special rules You must also note the special rules which apply in respect of divorce on
the ground of mental illness or continuous unconsciousness. These rules
are discussed on pages 123±124 of your prescribed textbook.
Court cases
Section 5A of the
Divorce Act 70 of
1979
164
6 DOES THE COURT HAVE A DISCRETION TO REFUSE A DECREE OF
DIVORCE?
This question is discussed in your textbook on pages 24±126. Your
textbook points out that the use of the word ``may'' in sections 3, 4 and 5
of the Divorce Act 70 of 1979 creates the impression that the court can
refuse to grant a divorce although one of the grounds for divorce has been
proved. Make sure that you know what was decided on this issue in Smit v
Smit, Schwartz v Schwartz and Levy v Levy. These cases are discussed on
pages 124±125 of your textbook. Also note the discussion on Schwartz v
Schwartz on pages 183±186 of the casebook. Note especially the second
paragraph of the note on the Schwartz case on page 186 in the casebook.
Regarding the court's discretion, you should further note the provisions of
section 5A of the Divorce Act 70 of 1979. The provisions and the aim of
section 5A are set out on pages 125±126 of the textbook. Note that the
court now has the discretion to refuse a decree of divorce if, as a result of
religious prescriptions, one or both spouses will not be able to remarry
once the court has granted a decree of divorce. In this manner the courts
can now assist a Jewish woman whose husband refuses to grant her a
divorce in terms of the Jewish faith. Also make sure that you know how
the court forced the husband to grant his wife a Jewish religious divorce in
Amar v Amar. (This case is briefly discussed on p 126 of the textbook.)
Further, you also have to take note of the argument that section 5A of the
Divorce Act possibly violates the constitutional right to equality, and
Cronje and Heaton's criticism against this argument. These aspects are
discussed on page 126 of the textbook. Lastly, you should also know that
section 5A of the Divorce Act may possibly infringe upon the right to
freedom of religion, but that it is submitted that the limitation of the right
to freedom of religion is justifiable as the purpose of the limitation is the
achievement of real equality.
QUESTIONS
NB: Make sure that you can answer these questions properly. They
are designed to test your knowledge of the study material in
this study unit.
. Introduction
(1) On which principle was the old divorce law based?