I.H.L v A.M.L (4172/2007) [2011] ZAKZDHC 58 (29 November 2011)

I.H.L v A.M.L (4172/2007) [2011] ZAKZDHC 58 (29 November 2011)

The court found that the marriage between the parties had irretrievably broken down, with both parties conceding there was no prospect of restoration. The defendant's claim that the marriage was putative and lay for annulment under Section 5A was abandoned after the plaintiff testified under oath that his previous marriage was dissolved due to his former wife's adultery, satisfying the defendant that there was no religious impediment. The court held that Section 5A did not apply, as there was no prescribed religious procedure requiring enforcement. The defendant's claim for forfeiture of assets was dismissed, as the parties were married out of community of property with accrual excluded,...

Citation
[2011] ZAKZDHC 58
Parties
Plaintiff: I H L; Defendant: A M L
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
29 November 2011
Case Number
4172/2007
Procedural Posture
Divorce Action / Trial and Final Judgment
Outcome
The marriage between the parties is dissolved by decree of divorce. The defendant's claim in reconvention is dismissed. Judgment is granted in favour of the defendant for repayment of monies loaned, interest, and disbursements.
Judges
Murugasen
Legal Topics
Irretrievable Breakdown of Marriage, Forfeiture of Assets, Universal Partnership, Oral Loan Agreement, Section 5a Divorce Act, Damages in Reconvention
Family and Children Civil Procedure Irretrievable Breakdown of Marriage Forfeiture of Assets Universal Partnership Oral Loan Agreement Section 5a Divorce Act Damages in Reconvention

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Parties

I H L

Plaintiff

A M L

Defendant

Procedural Posture

Divorce Action / Trial and Final Judgment

Legal Issues

  1. 1 Whether the marriage between the parties has irretrievably broken down and should be dissolved by divorce.
  2. 2 Whether Section 5A of the Divorce Act 70 of 1979 applies to the marriage and whether an annulment or divorce should be granted.
  3. 3 Whether the defendant is entitled to damages or forfeiture of assets in terms of her counterclaim.

Ratio Decidendi

The court found that the marriage between the parties had irretrievably broken down, with both parties conceding there was no prospect of restoration. The defendant's claim that the marriage was putative and lay for annulment under Section 5A was abandoned after the plaintiff testified under oath that his previous marriage was dissolved due to his former wife's adultery, satisfying the defendant that there was no religious impediment. The court held that Section 5A did not apply, as there was no prescribed religious procedure requiring enforcement. The defendant's claim for forfeiture of assets was dismissed, as the parties were married out of community of property with accrual excluded,...

Court Disposition

The marriage between the parties is dissolved by decree of divorce. The defendant's claim in reconvention is dismissed. Judgment is granted in favour of the defendant for repayment of monies loaned, interest, and disbursements.

Orders

  • A decree of divorce dissolving the marriage subsisting between the parties is ordered.
  • The defendant’s claim in reconvention is dismissed.