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Writer's pictureGoliath & Co

Till Dementia Do Us Part

Updated: Feb 27, 2023

Ordinarily in the face of an irretrievable breakdown of a marriage, the aggrieved party approaches the Court for an Order of Divorce. Recently, however, the Gauteng Division of the High Court at Pretoria in LM v DM 2021 (5) SA 607 (GP) was tasked with determining whether a Curator Bonis has locus standi (the right to approach or bring an action to Court) to institute divorce proceedings on behalf of an Alzheimer’s patient.


A curator Bonis is appointed by the High Court to manage the finances, property, or estate of a person who cannot do so because of mental or physical incapacity. The powers of the curator Bonis are set out in the Court Order confirming his or her appointment. In casu, the curator Bonis instituted divorce proceedings on behalf of WM (“the Patient”) against the

Patient’s wife, LM, relying on the fact that the relevant Order empowered him to do so. LM excepted to the summons instituting the action arguing that the curator Bonis did not have the requisite locus standi to institute divorce proceedings on behalf of the Patient owing to the nature of divorce proceedings being too personal.


The Common Law Position


Prior to this judgement, the common-law position that a curator Bonis has no capacity to institute divorce proceedings on behalf of the Patient was apparently incontestable. A series of older case law relying on Voet acknowledged that certain acts are considered to be of too personal a nature and cannot be performed by a curator. In other words, it was held that since the marriage tie is an intensely personal relationship with which no outsider has any right to interfere, it is the question for the spouse alone to say whether the marriage should or should not be broken, and no curator can determine this for him or her.


In one such older case considered by the Court, since the incapacity of the husband, the wife had committed adultery and was pregnant as a result of the adultery. An application was made for an order authorising the curator to institute divorce proceedings. Relying on the common law position, the curator’s application was dismissed.


In the later judgment of Spangenberg, the Court considered whether the abolition of fault as a requirement for a divorce in terms of the Divorce Act, and the introduction of the requirement of the irretrievable breakdown of a marriage, justified a deviation from the common law. The Court still refused to deviate from the common law as it then existed and stated that the deep personal nature of marriage has not changed. The Court held that when a spouse states that his or her marriage has irretrievably broken down, he or she is making a statement of the heart rather than a statement of fact; and that, while there are facts such as adultery and violence which can be proved as evidence demonstrating the irretrievable breakdown of a marriage, it is very difficult for an outsider to prove that an individual no longer loves or respects his or her spouse. It is therefore not possible, the Court held, for an outsider to be able to say whether a spouse is prepared to forgive a marriage partner despite whatever offence that partner has committed against that spouse as what appears to be unforgivable for one person may be tolerable for another.


Discussion and Reasoning


Turning to the present matter, the Curator conceded the common law position but argued for the development of the common law in accordance with the Bill of Rights. The Curator relied on Section 173 of the Constitution which provides that the Constitutional Court, Supreme Court of Appeal and the High Courts have the inherent power to develop the common law, taking into account the interest of justice.


In the present matter which concerned a Patient who suffered a stroke and was

subsequently diagnosed with dementia from which he is not going to recover, Kubushi J held that it is obvious that in such circumstances the incapacitated person will not be able to decide whether he has lost all love and affection for his wife because of his condition and in his view it would be in the interest of justice to develop the common law and empower a

curator to institute legal proceedings of a matrimonial nature on behalf of an incapacitated

person.


The Court held further that in such circumstances, it must allow some other evidence such as adultery and violence demonstrating the irretrievable breakdown of the marriage. In casu, the Patient was admitted to a live-in facility and owing to the fact that the patient's condition is not one from which he can recover, the Court held that there are no reasonable prospects for the restoration of a normal marriage relationship.


Conclusion


While divorce proceedings or dealing with loved ones with mental health illnesses like Alzhiemer’s disease and dementia can be enormously challenging, at Goliath & Co we will walk the legal journey with you and your family. We have experience in both divorce proceedings and curator applications so please do not hesitate to contact us today.


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