- November 3, 2022
- |Concise Law Reports (CLR), Law Of Persons
LAW OF PERSONS – DIVORCE – WHETHER OR NOT IT IS APPROPRIATE TO ISSUE A FINAL ORDER OF DIVORCE WHERE THERE IS AN EXISTING FINAL PROTECTION ORDER
The plaintiff instituted divorce proceedings against the defendant, which was defended, and the defendant further filed a counterclaim in which she sought a decree of divorce and payment of a certain amount to her by the plaintiff. The defendant, however, insisted that the divorce be dealt with together with the other pending issues. The court, nonetheless, proceeded to deal with the divorce proceedings first in order to eliminate issues not in contention between the parties. It became evident that there was a final protection order granted in favour of the plaintiff against the defendant on 14 June 2022. This protection order was valid for a period of two years. The plaintiff led evidence during the RCR proceedings and upon finality thereof submitted that a final order of divorce would be appropriate in this instance instead of the RCR proceedings, because of the protection order.
MASUKU J considered the matter and held that:
- The order for restitution of conjugal rights is issued by the court in circumstances where there is a genuine and serious intention and willingness by the parties to resume the marital relationship.
- It is inadvisable for the court to order restoration of conjugal rights where allegations of violence are pleaded in the papers and where a protection order is granted against one of the parties.
- It would send wrong signals to order a restitution order in the face of a protection order as it would seem to bystanders that the courts are speaking in contradictory terms.
As a result, a final order of divorce was thus granted in favour of the plaintiff and the matter was referred to case management in respect of the outstanding issues.
Homba v Homba NAHCMD 3 November 2022