When can a court refuse to grant a divorce?

In most cases, once a couple has proved on acceptable grounds that their marriage has irretrievably broken down the court does not have discretion to then refuse to grant them an order of divorce.

One exception to this rule, however, is outlined in section 5A of the Divorce Act. This section says that if the court believes that, despite the granting of an order of divorce, either one or both of the spouses will not be free to remarry because of religious conventions unless the marriage is also dissolved in accordance with their religion’s requirements or a barrier to re-marriage of either spouse is removed, the court may refuse to grant the order of divorce.

Section 5A only applies to couples that were married in both a civil marriage and a religious marriage. For example, the religion under which the couple was married may prescribe additional requirements for the dissolution of the religious marriage.

In Judaism, for example, where parties have entered into a religious marriage a husband has the power to grant his wife a religious divorce. A civil order of divorce has no effect in relation to the parties’ religious marriage and, if the husband doesn’t give his wife a get (a religious divorce document), any subsequent marriages she enters into will not be valid according to Jewish religious laws.

Section 5A of the Divorce Act was established to alleviate the plight of spouses who, for religious reasons, may be left in a similar situation. In the matter of Amar v Amar [1999] 2 All SA 376 (W), the court heard a matter where a husband was withholding the grant of a get on the basis, inter alia, that he was unhappy with certain financial provisions contained in the civil settlement agreement signed by the parties. The judge in the case granted the civil divorce and further ordered that the husband was obliged to pay maintenance to the wife until he granted her the religious divorce. Accordingly, the judge in that instance used the provisions of section 5A to motivate the unwilling husband to grant the get.

While courts rarely refuse to grant a divorce, there are times when South Africa’s law empowers courts to help protect a disadvantaged party. This is especially relevant in cases where couples have been married according to both civil and religious requirements.

By Gillian Lowndes – partner and family law specialist at Lowndes Dlamini