I A Bell Equipment Co Namibia (Pty) Ltd v ES Smith Concrete Industries CC (1860 of 2014) [2015] NAHCMD 493 (23 March 2015)

I A Bell Equipment Co Namibia (Pty) Ltd v ES Smith Concrete Industries CC (1860 of 2014) [2015] NAHCMD 493 (23 March 2015)

The plaintiff proved on a balance of probabilities that the defendant's conduct made cohabitation intolerable and was attributable to a fixed intention to end the marriage, amounting to malicious desertion. The defendant failed to prove his counterclaim or entitlement to forfeiture. The plaintiff is entitled to restitution of conjugal rights, equal division of the joint estate, and rehabilitative maintenance.

Citation
[2015] NAHCMD 493
Parties
Plaintiff: [D…………] [S……….] (BORN J……); Defendant: [H……….] [J…..][L….] [S……..]
Court
High Court Main Division
Jurisdiction
Namibia
Judgment Date
23 March 2015
Case Number
1860 of 2014
Procedural Posture
Divorce / Judgment After Trial
Outcome
Judgment for the plaintiff. Defendant's counterclaim dismissed.
Legal Topics
Divorce, Malicious Desertion, Community of Property, Maintenance, Restitution of Conjugal Rights
Source Language
English
Family Law Divorce Malicious Desertion Community of Property Maintenance Restitution of Conjugal Rights

Case Brief

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Parties

[D…………] [S……….] (BORN J……)

Plaintiff

[H……….] [J…..][L….] [S……..]

Defendant

Procedural Posture

Divorce / Judgment After Trial

Legal Issues

  1. 1 Whether the plaintiff proved malicious desertion by the defendant
  2. 2 Whether the plaintiff is entitled to restitution of conjugal rights and/or divorce
  3. 3 Whether the joint estate should be equally divided or forfeiture ordered

Ratio Decidendi

The plaintiff proved on a balance of probabilities that the defendant's conduct made cohabitation intolerable and was attributable to a fixed intention to end the marriage, amounting to malicious desertion. The defendant failed to prove his counterclaim or entitlement to forfeiture. The plaintiff is entitled to restitution of conjugal rights, equal division of the joint estate, and rehabilitative maintenance.

Court Disposition

Judgment for the plaintiff. Defendant's counterclaim dismissed.

Orders

  • Order of restitution of conjugal rights in favour of the plaintiff.
  • Defendant to return to or receive the plaintiff on or before 03 June 2015, failing which to show cause on 01 July 2015 why the marriage should not be dissolved.