Does Section 9(2) of the Divorce Act 70 of 1979 Provide Adequate Protection for an Ill Spouse?

• Published in: Obiter Vol. 45; no. 2; pp. 418 - 428
• Main Author: Sibisi, Siyabonga
• Format: Journal Article
• Language: English
• Published: Nelson Mandela University 01-06-2024; Sabinet Online
• Subjects: Divorce; Forfeiture; Marriage; Mental illness; Mentally ill; South Africa
• ISSN: 1682-5853
• DOI: 10.10520/ejc-obiter_v45_n2_a10

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.