DOES SECTION 9(2) OF THE DIVORCE ACT 70 OF 1979 PROVIDE ADEQUATE PROTECTION FOR AN ILL SPOUSE?

Abstract

In simple terms, section 9 of the Divorce Act (70 of 1979) provides for forfeiture of patrimonial benefits (forfeiture) in divorce proceedings if the ground for the divorce is the irretrievable breakdown of a marriage. It was important for the legislature to specify that forfeiture may only be made where the ground for a divorce is the irretrievable breakdown of the marriage (s 3(a) read with s 4(1)), because the latter is not the only ground for a divorce in South African law. A marriage may also be dissolved by a decree of divorce on the grounds of mental illness or continuous unconsciousness (s 3(b) read with s 5). Section 9(2) further clarifies the legal position by providing that forfeiture may not be ordered against the defendant where the grounds for a divorce are mental illness or continuous unconsciousness. Obviously, the purpose behind section 9(2) is to provide protection for the mentally ill or unconscious spouse in divorce proceedings. However, the protection provided is lacking in two respects. First, as is shown below, mental illness and continuous unconsciousness, as grounds for a divorce, do not cover all defendants who suffer from mental illness or continuous unconsciousness. Defendants who are mentally ill or unconscious, but fall outside the ambit of section 5, are not protected by section 9(2). Consequently, a forfeiture order becomes possible against them. Secondly, as is shown below through case law, it appears possible to prosecute a divorce against a mentally ill or a continually unconscious spouse under section 4(1) – that is, on the basis of an irretrievable breakdown of the marriage. In this case, a forfeiture is possible and the protection in section 9(2) is circumvented.
In light of the above, the adequacy of the protection in section 9(2) is questioned. This note discusses the adequacy of the protection in section 9(2). It also seeks to recommend ways in which the defect in this provision may be remedied. The grounds for a divorce in South Africa are discussed and mental illness and continuous unconsciousness are contextualised within the broader divorce jurisprudence. Thereafter follows a more focused discussion on mental illness and continuous unconsciousness as grounds for a divorce, as provided for in section 5. These discussions also reflect on the arguments by other academics, including arguments that section 5 should be expunged from the Divorce Act. Forfeiture is discussed briefly. In conclusion, the question whether section 9(2) provides adequate protection is considered together with the author’s recommendations.