Schwartz v Schwartz 1984 (4) SA 467 (A) (17 August 1984)

SCHWARTZ V SCHWARTZ

Court Name and Bench:

• Supreme Court of South Africa
• Names of Judges: MM Corbett, Kotze JA and Joubert JA
• Appellate Division

Date of Judgement:

• 17 August 1984

Parties Involved:

• Sydney Jacob Schwartz (Appellant) and Gladys Schwartz (Respondent)

Facts of the Case:

• The appellant and the respondent were a couple married in community of property. Their marriage began on the 18^th of December 1960.
• The appellant was a medical student at the University of Pretoria while the respondent was concluding her studies as a nursing student at the Johannesburg Technical College. The respondent decided to give up her studies to enable the appellant to continue with his.
• She worked in order to support his studies and their new life as a married couple. This enabled him to successfully pass his final exams in June 1967.
• From 1969, he began work as a medical practitioner in his private practice located in Krugersdorp, Transvaal. This is also where they built their home and worked together in the private practice. The practice acted as a joint venture they happily embarked on together.
• The parties had two children in 1967 and 1969 respectively. They were both very devoted and present parents to their two daughters.
• Furthermore, they each shared interests, some of which allowed them to incur property of about R80000 at the time of the divorce proceedings.
• While they seemed to be a perfectly happy couple to many onlookers, a problem arose when the appellant’s fidelity was brought to question. He had several affairs over the course of their marriage.
• The appellant alleged that the respondent knew about the affairs he had. She denied these allegations but still concurred that she would not have cared about them even if she was aware the entire time.
• However, issue arose when the appellant met Miss Lintvelt in 1977, after which their long-lasting affair began. He fell in love with her and soon enough, the respondent found out about the affair.
• After a while, the respondent instituted a delictual claim against Miss Lintvelt for damages for the alienation of the appellant’s affection for her.
• The outcome of the action remains unknown in this case.
• However, in 1978, the appellant filed for divorce from the respondent. The terms upon which this action was instituted also remains unclear, but it was before the commencement of the Divorce Act 70 of 1979 (“the Act”).
• During this time, the appellant continued living in the home he shared with the respondent until the end of 1979. He then shared a flat with Miss Lintvelt from then on.
• In the initial proceedings the appellant was advised that the prospects of success on his part were slim.
• In 1981, Miss Lintvelt left on a holiday visit abroad. Seeing as she had not informed the appellant of her departure, he was surprised by her absence and returned to the common home for two nights as he sought comfort from his family. He was able to reach her and after she informed him of her month-long visit, he was able to return to their flat where they continued co-habilitating as a couple.
• After Miss Lintvelt returned, the appellant withdrew the divorce action instituted and commenced a fresh action, now in terms of the Act.
• S4 of the Act stipulates that a court may grant a decree of divorce on the grounds that it is satisfied that “the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of restoration of a normal marriage relationship between them.”
• Such irretrievable breakdown is proven with evidence that may be accepted by the court as either proving or disproving the fact that the parties cannot mend the relationship.
• This section of the Act makes it clear that the court may reject the application for divorce if it is convinced that there is a reasonable possibility of reconciliation by any means between the two.

In the court a quo, the plaintiff argued that the marriage relationship had been broken down irretrievably in that;

1. The defendant was quarrelsome towards the plaintiff and was critical of him.
2. The defendant often threatened to leave the plaintiff.
3. The defendant often threatened to commit suicide to distress the plaintiff.
4. The plaintiff left the common household of the parties in 1977.
5. She assaulted the plaintiff and engaged in psychological warfare with him.
6. She neglected her appearance and was untidy which fuelled the plaintiff’s disinterest in her.
7. She steered the children’s minds against him.
8. The plaintiff had been living in an adulterous relationship with Miss Lintvelt.
9. The parties have lost their affection for one another.

• The respondent admitted that the marriage relationship had broken down but not irretrievably and not without prospect of the restoration of a normal marriage relationship between the parties.
• The appellant did not substantiate any of the aforementioned factors he attributed to the irretrievable breakdown of the marriage.
• The presiding officer at the court a quo, Theron J, summarised his views as being that the respondent’s sacrifices for the marriage to work and acceptance of the previous affairs were a testament to her willingness to the love she has for the appellant. Furthermore, the court a quo found that despite bearing the onus of proof in establishing that the marriage had been irretrievably broken down, the appellant had failed to do so.
• Therefore, the court used its discretion to deny the appellant’s submission for divorce on the grounds mentioned above and many more reasons linked to his and the respondent’s inconsistencies throughout the trial. Thus, the applicant then filed for leave to appeal in the Supreme Court of Appeal of South Africa (“the SCA”).

Issues Raised:

­On appeal, the main issue was whether the previous Judge’s finding regarding the irretrievable breakdown was justified by the evidence and if this meant the appeal should have been allowed.

Furthermore, the SCA had to decide on whether or not the parties’ marriage had reached such a state of disintegration to the point where there were no reasonable prospects of the restoration of a normal marriage relationship.

Arguments of the Parties:

The Appellant’ Arguments:

• He stated that he wanted to marry Miss Lintvelt which meant that he needed to dissolve his marriage with the respondent first.
• He found his marriage to the respondent to be “average” which led to the extramarital affairs.
• Since meeting Miss Lintvelt he did not have any other affairs as he claimed to be in love with her and not with the respondent anymore.
• They had already involved a third-party through a marriage counsellor whom they met on a few occasions, but this could still not mend the marriage relationship.

The Respondent’s Arguments:

• She suggested that this action for divorce by the appellant was fuelled by pressure from Miss Lintvelt. He rebutted this stating that he was making this decision on his own accord.
• The respondent referred to many liaisons between her and the appellant during the period leading up to the trial. This involved more conversation than had been made known and more visits by the appellant to the family home than usual. The appellant cleared these claims by stating that the visits and conversations were necessary as they had to do with the private practice and their two daughters.
• She then argued that on the morning of the trial, he expressed to her that if the action succeeded, she could appeal. This was something the appellant also shared. However, the respondent’s argument went further as she claimed that he promised her his return if the divorce was granted but he wasn’t married within two weeks from such a decision.
• Furthermore, some of his clothes were still in the common home.

Judgement/Final Decision:

• The decree of divorce was granted, and the appeal was allowed.
• The respondent would be receiving a half share of the parties’ joint estate.
• Custody of the two children would be awarded to the respondent.
• The appellant had to pay maintenance for each child every month and would be responsible for the payment of any medical expenses incurred by either of the two children from then on.
• Finally, the court made no order regarding the costs.

Legal Reasoning:

• At the time of the trial the parties had been separated for three years and the appellant had been in a relationship with Miss Lintvelt for five-and-a-half years.
• An irretrievable breakdown of a marriage can be accounted to the attitude and conduct of one of the parties to a marriage, despite the other wishing for the opposite. The court referenced Kruger v Kruger 1980 (3) SA 283 (0) as an example of this.
• The previous judge had found that the appellant was going through a phase of uncertainty, but this court disagreed in that it found the appellant to be a capable man whose decisions did not need excusing. The previous court found that he had not completely broken off his connection to the respondent. This court disagreed in such reasoning as it suggested that his sympathy for the respondent was reason enough to not grant the decree of divorce. The SCA found that in remaining in contact with the respondent, the appellant behaved normally for anyone in his situation.
• The appellant’s failure to support most of the allegations in his statement of claim did not establish uncertainty regarding the matter on his part and his display of misery throughout the trial does not equate to him not wanting to become divorced.
• The respondent argued that she believed that if the court ordered in her favour, the appellant would terminate his relationship with Miss Lintvelt. However, the court emphasised that there is no promise that if the court ruled any other way, he would resume his marriage with the respondent.
• Therefore, the appellant successfully established that his marriage to the respondent had broken down irretrievably and the previous court had failed to substantiate its initial judgement.

Conclusion:

This case played an important role in South African family law as it landmarked the coming into practical effect of the Divorce Act 70 of 1979. It highlighted the court’s discretion in contributing to the effectiveness of the law and its certainty today. Finally, it helped break down the subjective lens through which divorce cases need to be assessed. Through Schwartz v Schwartz, the breakdown of marriage relationships is now viewed from regulated standpoints and acts as one of the most effective systems in South African family law.