11 March 2015

Affairs and other grounds for divorce

By Susan Meijler

Many people still believe they need a reason to get divorced and that the courts are interested in the grounds for divorce.

This is a common misconception because the blunt truth is, the courts don’t care.

In a petition for divorce, all that need be stated is that the marriage has irretrievably broken down. This is a catch-all term covering anything that can spell the end of a marriage, including adultery, abuse or simply irreconcilable differences which make it impossible to remain married.


For many people, however, an affair is still the worst thing that can happen in a marriage. In our practice, of course, we understand this and are always willing to lend an ear. Life in general, and divorce in particular, is an emotional business. Someone who is still dealing with the immediate emotional aftermath of a decision to divorce, whether or not the decision was their doing, cannot be expected to be entirely objective and even less to make sensible decisions in such a heightened emotional state. Often, the first time they come to see us, people just want to offload and we don’t talk too much about the nitty-gritty of the divorce process.

Recent ruling

I recently read a ruling by the Court of Appeal in The Hague which, in light of the above, makes for an amusing read. These are the facts: The man and woman are in a relationship (but not yet married) and they live together in the man’s home. The woman then discovers she is pregnant and they decide to get married. Before the wedding, they have a prenuptial agreement drawn up by a notary. For this weblog, suffice to say that one of the stipulations of the agreement was “that, in the event of divorce, the home and the mortgage on it will be included in the divorce settlement”. In 2010  they get married and the baby is born.

One year later, a DNA test reveals that the man is not the baby’s father and he promptly files for divorce.


The husband has been deceived, which is of course awful; he entered into the marriage in the assumption that he and his wife were expecting their baby. What the husband didn’t know was that he had not fathered the baby. In the divorce proceedings, the husband invokes the grounds of reasonableness and fairness, arguing that he cannot be held to the prenuptial agreement. His reasoning is as follows:

The wife used her pregnancy to trap him and persuade him to marry her, under the misapprehension that he was the father;

The wife was interested only in financial gain (she was a gold digger, in other words) because the stipulation about the home was included in the prenuptial agreement at her express request;

The wife should have told the husband about her adultery. In short, the husband argues that the wife has acted in bad faith and he would never have married her had he known that he was not the baby’s father.

The court sides with the husband, but the wife appeals. The Court of Appeal takes an entirely different view of the case, believing that the husband has failed to prove that he was not aware of the wife’s deceit at the time of the marriage and had in that case reason to suspect that he may not be the child’s father. The Court of Appeal makes this assumption despite the fact that the husband submitted numerous witness statements to the proceedings. What comes to light during the hearing? The husband knew that the wife had already deceived him on a number of occasions and that, while she was in a relationship with him, had twice fallen pregnant by other men – so the husband was forewarned when he entered into the marriage! Perhaps unnecessarily, the Court also considers that, even had it already been established that, at the time of the marriage, the husband was not aware of the wife’s deceit, the decision would have been no different, because none of the circumstances of this case are so unusual that they justify waiving the prenuptial agreement on the grounds of reasonableness and fairness.  The Court believes there is no connection between the prenuptial agreement and presumed paternity.

So forewarned is forearmed! The only possible conclusion is that, if one party entered into the marriage under false pretences, little can be done about it. From a legal perspective, that person is treated no differently to the other person who enters into marriage with the best intentions.

Do you need help with family law and what it means for you?

Contact us for advice.

Susan Meijler

Susan Meijler


Susan Meijler is a well-experienced and versatile lawyer at GMW lawyers.

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