Case Study: The Battle Between Divorce Law & Law of Contract

There is an age-old debate about whether spouses should be bound to an anti-nuptial contract concluded between the two parties. This has transcended time, applying to both plaintiffs and defendants in divorce cases.

Applying the principle of fairness and reason in divorce, actions favour the principle that an antenuptial contract should be disregarded in favour of a more reasonable, fair or equitable division of assets.

Should the strict application of the antenuptial contract entered into between the parties not serve the principle of fairness in the division of assets, the opposite lobby argues that the principles of abiding with the terms of a contract should be applied. This is notwithstanding the fact that, in the event of a divorce, the effect of the antenuptial contract will cause an unfair distribution of assets between the parties.

How It Progressed to the Constitutional Court

The first attempt by the legislature to introduce the principle of fairness at the behest of serving the principle of contract occurred on 1 November 1984. This is noted as the period when courts were granted discretionary powers in terms of the Divorce Act. Simply put, in divorce proceedings, the court can make an order that serves the principle of “just and equitable” – contrary to the strict wording of the contract.

The problem arose that the legislature introduced the principle of “just and equitable” only to marriages concluded before 1 November 1984 – but not marriages concluded by way of antenuptial contract after 1 November 1984.

On 11 May 2022, the High Court of Pretoria, in the Greyling judgement, declared that the limited application of the principle of a just and equitable distribution of assets was unconstitutional. This was applied only to marriages entered into before 1 November 1984 as the Divorce Act did not apply to divorces of spouses married out of community of property after 1 November 1984.

The Aftermath That Followed

This piqued interest amongst attorneys, advocates and other legal practitioners practising in divorce law. This judgment by the High Court opened up a can of worms regarding issues disputing constitutional rights. This included contractual freedom, equality, dignity, property, freedom of belief and opinion and other potential rights.

In future cases, the Constitutional Court would have to give general direction to attorneys and lawyers regarding the numerous disputes and actions in which attorneys represent spouses. This applies to husbands and wives as the plaintiffs and defendants in cases, respectively.

There is uncertainty in present divorce proceedings as to what the ultimate decision of the Constitutional Court will be. This is due to the fact that the future judgment to be made by the Constitutional Court will have a severe impact on how future settlement agreements should be formulated in order to serve the best interests of divorcing spouses.

A contested divorce is when one or both parties cannot agree on the terms of the divorce, such as the division of assets, child custody, or maintenance. In this case, the matter is referred to the court for resolution, and a judge will make a final decision on the terms of the divorce. A contested divorce can be a long, complex, and expensive process that may require the assistance of legal counsel.

On the other hand, an uncontested divorce is when both parties agree on the terms of the divorce, and there are no disputes to be resolved by the court. This type of divorce is typically less time-consuming, less expensive, and less stressful for the parties involved. However, it is still important to follow the legal procedures for an uncontested divorce to ensure that the court recognizes the divorce and that the parties’ rights and interests are protected.

Grounds for Divorce in South Africa

It must be noted that the grounds for divorce in South Africa are not limited to the below-mentioned, and there can be other grounds too. However, whatever the grounds for divorce, it is crucial to follow the legal procedures and requirements to ensure that the court recognizes the divorce and that the parties’ rights and interests are protected.

In South Africa, there are several grounds for divorce recognized by law, including:

Irretrievable Breakdown Of The Marriage

The most common ground for divorce is the irretrievable breakdown of the marriage, which means that the marriage has broken down to such an extent that it cannot be repaired. This ground can be proven in court by showing that the parties have been living separately for at least two years or that there is no reasonable prospect of the parties reconciling.


Other grounds for divorce in South Africa include adultery, which is the act of one spouse having a sexual relationship outside the marriage without the other spouse’s consent. Adultery can be difficult to prove in court, and it is often used as a reason for divorce only when it has caused irreparable harm to the marriage.


Abuse is also recognized as a ground for divorce in South Africa. This can include physical, emotional, or psychological abuse and can be grounds for divorce even if the abuse has not been reported to the police.


Other grounds for divorce in South Africa include desertion, which is when one spouse abandons the other without consent or justifiable cause for a period of at least one year, and incurable mental illness, which is when one spouse is mentally ill and has been confined to a mental institution for a period of at least two years.

Child Custody and Support

In South Africa, child custody and support are determined based on the child’s best interests. When making these decisions, the court takes into account a range of factors, including:

  • The child’s age, gender, and any special needs
  • The relationship between the child and each parent
  • Each parent’s ability to provide for the child’s physical, emotional, and psychological needs
  • The child’s educational and social needs
  • The child’s cultural and religious background
  • The child’s wishes, if they are of an age and maturity to express a preference
  • Any history of abuse or neglect by either parent
  • Any other relevant factors

In general, the court seeks to ensure that the child’s living arrangements provide stability, security, and a positive environment for growth and development.

Child Support: Legal Obligations

Regarding child support, both parents are legally obligated to provide financial support for their child. The amount of child support is usually determined based on the child’s needs, the income and expenses of each parent, and the standard of living the child was accustomed to before the divorce. When calculating child support, the court may also consider additional expenses, such as medical fees or extracurricular activities.

It is essential for parents to work together to create a parenting plan that outlines the details of their child custody and support arrangement. This can include the physical custody arrangement, visitation schedules, and how financial support will be provided. The parenting plan can be negotiated between the parents with the assistance of legal counsel or using alternative dispute resolution methods such as mediation or arbitration. Once agreed upon, the parenting plan can be presented to the court for approval, ensuring that the child’s best interests are considered.

The Best Interest Of A Child

The concept of “the best interest of a child” runs like a golden thread through the provisions of the Children’s Act. The Children’s Act codified the common law principles that applied to the best interests of a child.

The best interests of a child have been, and will be, the subject of consideration by the South African High Court in divorce proceedings.

In The Circumstance Of Adoption: A Case Study

In the judgment of GT v CT, the court considered the application of the principle of “the best interests of a child” concerning an adoption order of a child. In this matter, the applicant sought the rescission of adoption orders granted in his favour regarding two adopted children.

The biological parents, who consented to the adoption order granted in 2007, did not oppose the application by the adopting father, but the Registrar of Adoptions did. Prior to the hearing of the matter, the court issued an order against the family advocate to compile a report. This report had to clearly indicate the possible outcome, taking into account the best interests of the children, should the order for the rescission of the adoption orders be granted.

The applicant’s case was that he did not want any physical or emotional contact with the children, nor that he desired to revive the parent-child relationship. This resulted from him being instructed by one of the biological parents (to whom he was previously married) to prevent him from exercising his parental obligations and responsibilities towards the children. The applicant believed that the situation of him being obstructed from having contact with the children had become so intolerable and untenantable that he thought it to be in the interests of the children that the adoption orders be rescinded. 

In weighing up the children’s best interests in adoption matters, the court was compelled to consider the effect the recission of the adoption orders will have on the children. The Constitution of the Republic of South Africa also preserves the best interests of children.

The family advocate was of the view that the adoption orders should be rescinded, as the family advocate considered it in the best interests of the children under the relevant circumstances. An appropriate consideration was that the biological parents of the children have continuously exercised certain parental rights, obligations and responsibilities towards their biological children. This is notwithstanding the granting of the adoption orders in favour of the applicant. The family advocate was further of the view that the rescission of the adoption orders would not have any permanent negative psychological and emotional effect on the children, as they had continued contact with their biological parents.

Under the circumstances, and considering the principle of the “best interests” of children, were rescinded in favour of restoring parental responsibilities and rights in favour of the biological parents.

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