Schwartz v Schwartz

• Jurisdiction: South Africa
• Judge: Corbett JA, Kotzé JA and Joubert JA
• Judgment Date: 17 August 1984
• Citation: 1984 (4) SA 467 (A)
• Hearing Date: 21 May 1984
• Court: Appellate Division

Schwartz v Schwartz
1984 (4) SA 467 (A)

1984 (4) SA p467

Citation	1984 (4) SA 467 (A)
Court	Appellate Division
Judge	Corbett JA, Kotzé JA and Joubert JA
Heard	May 21, 1984
Judgment	August 17, 1984

Flynote : Sleutelwoorde

Husband and wife — Divorce — On the grounds of irretrievable breakdown of the marriage as intended in ss 3 and D 4 of Act 70 of 1979 — Proof of — Important for Court to have regard to the history of the relationship of the parties up to the date of trial and present attitude of the parties to the marriage relationship — Not legitimate or logical to determine whether or not marriage has broken down irretrievably by reference to what would or might occur if a decree of divorce is refused.

Husband and wife — Divorce — On the grounds of irretrievable breakdown of the marriage as intended in ss 3 and 4 of Act 70 of 1979 — Powers of Court — Semble: Section 4 (1) of Act not conferring a discretion on the Court — Difficult to visualize on what grounds Court, if satisfied that F marriage has irretrievably broken down, could withhold a decree of divorce — Power conferred by s 4 (3) not necessarily indicative of a residual discretion vesting in the Court under s 4 (1).

Headnote : Kopnota

In determining whether a marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between the G parties (ie that there has been an irretrievable breakdown of the marriage as intended in ss 3 and 4 of the Divorce Act 70 of 1979), it is important to have regard to what has happened in the past, ie the history of the relationship up to the date of trial, and also to the present attitude of the parties to the marriage relationship as revealed by the evidence at the trial.

It is not legitimate or indeed logical to determine whether or not a marriage has broken down irretrievably by reference to H what would or might occur if and after a decree of divorce has been refused on the ground that irretrievable breakdown of the marriage has not been established.

Semble: Section 4 (1) of the Divorce Act 70 of 1979 does not confer a discretion on the Court to withhold a decree of divorce upon proof of the irretrievable breakdown of the marriage of the parties. It is true that s 4 (1) is couched in permissive terms. It does not follow, however, that the Legislature intended to confer a discretion on the Court. I Section 4 (1) empowers the Court to grant a decree of divorce on the ground of the irretrievable breakdown of the marriage "if it is satisfied that..."; and then follows a specified state of affairs which is in effect the statutory definition of irretrievable breakdown. Clearly, satisfaction that this state of affairs exists is a necesary prerequisite to the exercise by the Court of its power to grant a decree of divorce on this ground. But once the Court is

1984 (4) SA p468

so satisfied, can it, in its discretion, withhold or grant a A decree of divorce? It is difficult to visualize on what grounds a Court, so satisfied, could withhold a decree of divorce. Moreover, had it been intended by the Legislature that the Court, in such circumstances, would have a residual power to withhold a decree of divorce, one would have expected to find in the enactment some more specific indication of this intent and of the grounds upon which the Court might exercise B its powers adversely to the plaintiff. There is much to be said for the view that the concepts of irretrievable breakdown and the reasonable possibility of reconciliation (the latter concept being provided for in s 4 (3) of the Act) are mutually contradictory and that the existence of the power conferred by s 4 (3) does not necessarily indicate a residual discretion vested in the Court by s 4 (1).

The decision in the Transvaal Provincial Division in Schwartz v Schwartz reversed. C

Case Information

Appeal from a decision in the Transvaal Provincial Division (THERON J). The facts appear from the judgment of CORBETT JA.

J Fasser for the appellant: The Court below erred in failing to take any or material cognizance of the following in D ascertaining (i) whether or not there has been a breakdown of the parties' marriage, and (ii) whether or not such breakdown is irretrievable as contemplated by s 4 of the Divorce Act 70 of 1979, namely whether or not there is any reasonable prospect of the restoration of a normal marriage relationship between the parties: (a) that the parties have been living apart since September 1979 (just over three years as at the date of trial) E when appellant commenced living in adultery with Miss Lintvelt. This is common cause; (b) that there has been no sexual relationship between the parties since at least September 1979; (c) that the relationship between appellant and Miss Lintvelt has already endured for about six years - this F has never been disputed; (d) the appellant's intellectual level, his educational level, experience, responsibility and maturity; (e) the thought and consideration appellant has given to his decision to pursue a divorce. In the final analysis and on the evidence as a whole, by all objective or subjective standards, there has been an indisputable breakdown of the marriage relationship between the parties with no reasonable G prospect of the restoration thereof. Dickinson v Dickinson 1981 (3) SA at 860D - F. Appellant has expressed a clear and unambiguous lack of desire to continue with the marriage. Kruger v Kruger 1980 (3) SA at 286A - D; Swart v Swart 1980 (4) SA at 368D - E; Krige v Smit NO 1981 (4) SA at 414C - D. Smit v Smit 1982 (4) SA at 40C. What is acceptable to H respondent as a successful and normal marriage is clearly, from the evidence, not what was or is acceptable to appellant. Swart v Swart (supra at 368A - B). Fault is clearly not a requirement for the purpose of considering the breakdown of the marriage and the retrievability or irretrievability thereof. Singh v Singh 1983 (1) SA at 785F; Hahlo and Sinclair The Reform of the South African Law of Divorce (1980) at 1; s 3 (a) I of the Divorce Act 70 of 1979; Hahlo and Sinclair (op cit at 21 - 39). It matters not what the respective motivations of the parties are or whether the one is more noble than the other. Hahlo and Sinclair (op cit at 24). In any event, the Court would be loath to be seen in any way to sanction or promote adultery. Appellant's lack of desire to wish to hurt the respondent more than is necessary and his desire to maintain a friendly relationship with her cannot detract from

1984 (4) SA p469

his subjectively expressed intention to pursue Miss Lintvelt in A preference to his wife. Hahlo and Sinclair (op cit at 28 - 34); Kruger v Kruger (supra at 286A - F).

R Kruger SC (with him L Wepener) for the respondent: It is clear that the Court a quo exercised its discretion in view of the facts of the case. The discretion exercised by the Court a B quo should not be interfered with. See Smit v Smit 1982 (4) SA at 41. The Court of appeal would only interfere with the exercise of the discretion of the Court a quo if the findings of fact were wrongly made. Swain v Society of Advocates, Natal 1973 (4) SA 784; Taljaard v Sentrale Raad vir Koöperatiewe Assuransie Bpk 1974 (2) SA 450; Rondalia Assurance Corporation of SA Ltd v Dassie 1975 (3) SA 689.

Fasser in reply. C

Cur adv vult.

Postea (August 17).

Judgment

Corbett JA:

In some respects the facts of this case bring to D mind the words of the poet -

"How happy could I be with either,

Were t'other dear charmer away!"

The appellant and his wife, the respondent, were married in E community of property on 18 December 1960. At the time appellant was a medical student at Pretoria University and respondent was a pharmacy student at the Johannesburg Technical College. After the marriage respondent gave up her studies in order to find employment so that she could support herself and her husband, while he continued with his medical studies. Out F of her earnings she in fact partly paid for his studies. The appellant passed his final examinations in June 1967. In about 1969 he commenced private practice as a medical practitioner, on his own, in Krugersdorp, Transvaal. He and the respondent established a home there.

G From the start respondent worked for appellant. She handled the financial side and general administration of the practice. This included keeping the books and preparing annual financial statements. The practice was in a sense a joint venture. They watched it grow together and gained much satisfaction from the fact that it prospered. The extent to which it prospered may be roughly gauged from the fact that during the divorce trial, H which later ensued, respondent stated that appellant was earning about R10 000 per month from his practice. This statement was not challenged or denied.

Until about 1977 the parties appear to have been a reasonably happily married couple. They had two children, both daughters. The elder was born in February 1967, just before the completion I of appellant's medical studies. The younger was born about two years later. Appellant and respondent were both very devoted to their children.

Apart from the fact that they worked together in the practice, appellant and respondent had certain interests in common. They were both fond of music and interested in art. Over the years they together had

1984 (4) SA p470

Corbett JA

A purchased a number of paintings by South African artists, which at the time of the divorce trial were estimated by appellant to be worth about R80 000. The overall impression is one of a placidly happy and contented relationship. It subsequently transpired that marital fidelity was not appellant's strong point. He had had several affairs with nurses and nursing sisters. These were each of short duration. B At the trial...