Schwartz v Schwartz

The parties married in community of property in 1960. The respondent supported the appellant through medical school and subsequently worked in his medical practice, managing its finances. The marriage was generally happy until 1977, when the appellant began an extramarital relationship with a much younger woman, Miss Lintvelt. The appellant left the common home in September 1979 to live with Miss Lintvelt. He instituted divorce proceedings, initially under the common law before the Divorce Act 70 of 1979, and later under the Act. The respondent, despite the appellant's infidelity and cohabitation with another woman, wished to preserve the marriage. The trial court dismissed the appellant's claim, finding he had failed to prove irretrievable breakdown.

• Whether the marriage had irretrievably broken down as contemplated by sections 3(a) and 4(1) of the Divorce Act 70 of 1979.
• Whether section 4(1) of the Divorce Act confers a residual discretion upon a court to refuse a decree of divorce even if it is satisfied that the marriage has irretrievably broken down.
• Whether the irretrievable breakdown of a marriage can be established based on the conduct and attitude of only one spouse despite the other spouse's desire to preserve the marriage.

The appeal was allowed. The order of the trial court was set aside and a decree of divorce was granted, with orders as to custody, maintenance, and division of the joint estate. No order was made as to costs.

The irretrievable breakdown of a marriage, as defined in section 4(1) of the Divorce Act 70 of 1979, requires an objective assessment of whether the marriage relationship has reached such a state of disintegration that there is no reasonable prospect of restoring a normal marriage relationship. Such a breakdown can be established based on the conduct and attitude of only one spouse, even if the other spouse genuinely wishes to preserve the marriage.

The court expressed doubt as to whether section 4(1) confers a residual discretion on a court to refuse a decree of divorce once it is satisfied that the marriage has irretrievably broken down, suggesting that the concepts of 'irretrievable break-down' and 'reasonable possibility of reconciliation' under section 4(3) are mutually contradictory.

Schwartz v Schwartz is a landmark decision of the then Appellate Division interpreting the 'no-fault' divorce ground of irretrievable breakdown introduced by the Divorce Act 70 of 1979. It established that the test for irretrievable breakdown is objective and that the defence of a 'guilty' but loving spouse who wishes to preserve the marriage cannot defeat a claim if the breakdown is objectively irretrievable. The case also gave authoritative, though obiter, guidance on whether courts retain a discretion to refuse a divorce.