The guilt principle also determined the patrimonial consequences of divorce in that, failing a maintenance agreement between the spouses, an order for post-divorce maintenance could be made only in favour of the innocent party against the guilty party, and the latter forfeited all patrimonial benefits of the marriage if the former applied for a forfeiture order against him or her.
This shift from fault to failure was also reflected (albeit to a lesser extent) in the statutory provisions governing the patrimonial consequences of divorce.
As was pointed out by Margo J in Naidoo v Naidoo, this test is both subjective and objective: In Schwartz v Schwartz, the Appellate Division formulated the general approach to be taken as follows: In determining whether a marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between the parties it is important to have regard to what has happened in the past, ie the history of the relationship up to the date of trial, and also to the present attitude of the parties to the marriage relationship as revealed by the evidence at the trial.In Coetzee v Coetzee, the court found that this test had not been met.
A marriage which has always been a dreary or unattractive one does not break down as "a result of a mere reservatio mentalis or change of animus without an accompanying factum.
It is clear that more is required for the purposes of this guideline than mere geographical separation between the spouses; there must have been a termination of the marital consortium.
Like the common-law ground of malicious desertion, non-cohabitation "as husband and wife" (or rather, as a married couple) within the meaning of section 4(2)(a) presumably includes a physical as well as a mental element: that is, the fact of separation and the intention of at least one of the spouses to terminate the marriage relationship.
In the usual case spouses cease to "live together as husband and wife" or as a married couple when they establish separate households, at least one of them having the intention to put an end to their marriage relationship by such a move.
On the other hand, the mere fact that the spouses are physically separated from each other for a period of time does not necessarily mean that they are not living together as married couple.
Section 4(2)(a) requires an unbroken period of non-cohabitation of at least one year immediately preceding the date of the institution of the divorce action.
Whether the running of this one-year period will be interrupted by short intervals of resumed cohabitation, in attempts by the spouses at reconciliation, is a matter for debate in South African law.
A married woman who is raped, however, or who undergoes artificial insemination by a donor without her husband’s consent, does not commit adultery.
A minimum period of imprisonment is no longer required, however, although it would appear that the defendant must actually be in prison at the date on which the divorce action is instituted.
It may also order the furnishing of security by the plaintiff in respect of any patrimonial benefits to which the defendant may be entitled by reason of the dissolution of the marriage.
Finally, in the case of a decree of divorce being granted on one of these two grounds, no order for the forfeiture of any patrimonial benefits of the marriage may be made against the defendant.
A decree of divorce terminates, with prospective effect, all the personal consequences of the marriage, with the exception of the evidentiary privilege in respect of communications exchanged between the former spouses stante matrimonio.
[4] The common-law principles regulating the patrimonial consequences of divorce discussed below apply also, mutatis mutandis, to all customary marriages.