Browsing: Sexual conduct

The wife tried to introduce around 50 allegations about her husband’s behaviour, including claims that he wanted another man involved in their sexual relationship. Judge Greig found that conduct relevant to the end of a marriage can be considered when deciding on maintenance under Section 7(2) of the Divorce Act. The wife was allowed to change her pleadings but had to remove repetitive, inflammatory and overly detailed allegations. She was also ordered to pay her husband’s legal costs. A divorce that began with a husband saying that he and his wife had slowly grown apart has turned into a very personal legal dispute with claims about sexual preference, sexual conduct and the details of their 33-year marriage. At first, the wife accepted that the marriage had ended, but said it happened suddenly when her husband told her he no longer wanted to be married and planned to take a sabbatical. Nearly four years into the divorce, though, she wanted to change her story. She accused her husband of behaviour that she said showed their relationship was never normal, mainly because, according to her, his sexual preference was for men. She tried to introduce around 50 allegations about his conduct during the marriage. The High Court in Cape Town ruled that she could include allegations about conduct that might be relevant to the end of the marriage, even though her husband argued that such claims had no place in South Africa’s mostly no-fault divorce system. But Acting Judge P Greig made it clear that being relevant did not give the wife permission to include every detail. Wife changed her case after hiring new attorneys The couple married on 15 January 1993 out of community of property with accrual and have two children. The husband filed for divorce in August 2021, saying they had slowly grown apart. The wife submitted her plea and counterclaim in February 2022. She agreed that the marriage had ended but denied that they had slowly grown apart. Instead, she said her husband told her unexpectedly that he no longer wanted to be married and was taking a year-long sabbatical. Her original counterclaim mentioned more usual reasons for the breakup, like a lack of love and affection, poor communication, and her husband leaving the family home. The wife later changed attorneys twice. In August 2025, after hiring her current legal team, she gave notice that she wanted to replace her plea and counterclaim with a very different version. The new plea claimed that there had never been a normal relationship between the couple, mainly because of her husband’s sexual preference for men. The new counterclaim listed 50 separate allegations about his conduct, with some dating back to 2005. She said shame stopped her from speaking earlier The wife explained that embarrassment and shame had kept her from sharing the issues she now wanted to raise. She told the court that, when she met her new attorneys, she was finally able to speak openly about what she described as the abuses and degradations she had experienced in the marriage. She said the issues around her husband’s alleged sexual orientation and what she called demeaning and humiliating sexual requests were especially hard for her to talk about. She wanted to protect her children, her family, and her social circle from what she saw as deeply embarrassing behaviour. Judge Greig saw little reason not to believe her explanation. The judge also rejected the idea that just because the wife stayed married for years, earlier conduct could not have led to the eventual breakup. Many people stay in unhappy marriages for years or even decades, Judge Greig said. The judge found that the wife’s embarrassment about her past helped explain why she hadn’t raised these issues before. Husband argued the allegations were not relevant The husband opposed the changes for several reasons. He said the wife was trying to take back an earlier admission and put forward a very different case nearly four years after the divorce started. He also argued that the claims were scandalous, unnecessary and not relevant, that they contained evidence that should not be in pleadings, and that some revealed confidential settlement talks. His main argument was that South Africa’s divorce law is based on a no-fault system, so allegations about his sexual orientation and conduct were not relevant to the wife’s maintenance claim. He also said the claims were meant to humiliate and embarrass him. Judge Greig agreed that the wife was now making a very different case. But the judge found she had given a good reason for the change and said there was no reason to reject it at this stage of the case. The objection about changing her case therefore failed. Divorce law still recognises relevant conduct The central issue was whether the wife’s claims could legally be relevant to the divorce case. Section 7(2) of the Divorce Act 70 of 1979 clearly allows a court, when deciding on maintenance, to look at several factors, including each person’s financial position, earning potential, needs, ages, how long the marriage lasted and their standard of living. It also specifically includes their conduct, if it is relevant to the end of the marriage. The husband argued that because modern divorce law is mostly no-fault, such fault-based factors should not decide maintenance. Judge Greig agreed that there is a strong argument for removing fault-based factors from a mainly no-fault divorce system. But the law has not changed. There is force in these arguments as a matter of policy or law reform, the judge said. However, Section 7(2) has stayed the same for more than 40 years. The judge said the wife could claim facts about her husband’s behaviour if she said they were relevant to the end of the marriage. Whether that behaviour will matter at trial, and if so how much, is not for this court to decide, Judge Greig said. At this stage, the question was just whether the claims could be relevant, not whether they would ultimately affect maintenance. Judge rejects graphic and repetitive allegations Although the wife won on the main relevance point, she was not allowed to include all 50 allegations as she proposed. Judge Greig found that the counterclaim had a lot of repetition, inflammatory language and claims based on suspicion or belief rather than facts. The judge said this was important because much of the claim was about the husband’s alleged sexual orientation and his relationships with other men. Among the claims was an allegation that, from around 2005, the husband insisted that the couple have a threesome with another man. The wife also said he often suggested bringing another man into their bedroom and told her it was the only way he could be aroused with her there. Judge Greig found that repeating the same points several times, along with explicit detail, went too far and was unnecessary. The judge also ordered that words like “disgraceful conduct” be taken out, finding such language to be inflammatory rather than necessary to prove the case. Other claims were removed because they only stated the wife’s suspicions or beliefs, without properly alleging behaviour relevant to the end of the marriage. A claim about a room at the Pretoria Country Club was also removed because the wife said she didn’t believe her husband’s explanation for keeping it, but left the purpose of the room as just an inference. A claim that the wife believed her husband was involved with a named man and went to a “boys club” in London was also removed, as it was just based on belief and added unnecessary detail. The court draws a line between relevant facts and unnecessary detail Judge Greig stressed that the ruling did not mean every claim about sexual conduct was allowed. The difference was between facts that could help show the marriage broke down, and unnecessary detail that would force the other party to respond to lots of embarrassing or irrelevant material. A claim remains if it alleges a fact that goes to the breakdown of the marriage, the judge said. But any claim that was just an insult, too inflammatory, or mostly repeated what was already said had to be removed. The judge said that what was left of the wife’s case would keep its essential points, while allowing the husband to respond without having to deal with a huge amount of degrading detail. The 50 proposed claims were therefore cut to about half. Wife gets 10 days to amend her pleadings Judge Greig gave the wife permission to amend her plea and counterclaim, as long as the specified claims were removed. The judge also ordered her to pay her husband’s costs in fighting the amendment, including the costs for one counsel on scale B. The court noted that asking for the amendment nearly four years after the divorce started had delayed settling the matter even more. Conviction.co.za Get your news on the go. Click here to follow the Conviction WhatsApp channel.

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