ANNE SUSAN DEWAR v PETER ALEXANDER DEWAR (1971) Z.R. 38 (H.C.)

Facts

The petitioner and respondent were of Scottish origin and married in Scotland. The petitioner prayed for a dissolution of the marriage brought under section 2 (1) (b) of the Divorce Reform Act, 1969. The requirements of this section read together with section 2 (3) were firstly, irretrievable breakdown of the marriage and secondly, the existence of the facts listed as (a) to (e) in section 2(1) [read commentary below for more information]. She also prayed for custody of the two minor children of the marriage, and maintenance for herself and the children. The respondent realized his saleable assets, took John Bruce (one of the children) from his wife’s reach and removed his name from her passport (this action precipitated into legal proceedings).

Issue

Whether a decree nisi could be granted on the ground of irretrievable breakdown evidenced on the premise that the petitioner cannot reasonably be expected to live with the respondent. Moreover, it also had to be determined which of the two parents got custody of the children.

Held

Given the history and background of the marriage, the court made a finding of fact that the marriage had reached a point of complete antagonism and lack of trust. In answering the question as to whether the marriage had broken down irretrievably and that the petitioner could not reasonably be expected to live with the respondent, the court applied the objective test. This was, of course, in consideration and taking into account the characters and personalities of the parties; and the whole background and history of the marriage must be considered. On that basis, the court found that the petitioner could not be expected to live with the respondent in consideration of his last action (complained of). Furthermore, custody of the children was granted to the mother citing that she had elements of maturity and stability.

Commentary

General Observations: CUSTODY— (i.) In this case, Baron J made mention that he did not regard adultery as a ground for depriving the child of the advantages of being in the mother’s care. (ii.) Even though John Bruce was ‘attached to his father’ while only ‘fond of his mother’, the court still came to the conclusion that the mother was more suitable. (iii.)  Baron J confirmed the Juvenile Inspector’s recommendation that the children should not be separated [because there is an obvious benefit of the two children growing up together]

GROUNDS FOR DIVORCE— A definition of ‘cruelty’ was defined from Lord Pearce in Gollins v Gollins as “whether the cumulative conduct was sufficiently weighty to say that from a reasonable person’s point of view after a consideration of any excuse which the respondent might have in the circumstances, the conduct is such that this petitioner ought not to be called on to endure it.”  In this regard Baron J made mention that for the provisions of s. 2 (1) (b) to be met the conduct need not be as serious as would have amounted to cruelty under the pre-1971 law.

Unfortunately, I have been unable to avail myself of this ‘pre-1971 law’. Perhaps someone in the General Public will be more successful. If that is the case, please email me at yaimanbande@gmail.com so that we could amend this case where necessary. I can only deduce that the provisions of section 2 (1) (b) of the Divorce Reform Act, 1969 and those factors listed from (a) to (e) are similar to our section 9 (1) (a) to (e) of the Matrimonial Causes Act No.20 of 2007.

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