A wife embroiled in a bitter divorce battle has won the right to accuse her husband in court papers of concealing a preference for men and engaging in conduct that allegedly destroyed their 28-year marriage.
However, the Cape Town High Court in the Western Cape ordered that dozens of allegations be removed because they were repetitive, inflammatory or amounted to unnecessary detail rather than material facts.
Acting Judge Greig allowed the woman, identified only as M.P., to substantially amend her divorce pleadings so she can place her version of the marriage before the trial court.
The couple, identified as J.P. and M.P., married in January 1993 out of community of property with the accrual system and have two children. J.P. filed for divorce in August 2021, claiming their relationship had simply “gradually grown apart.”
When M.P. initially responded in February 2022, she accepted that the marriage had broken down irretrievably but disputed that it had happened gradually. Instead, she said her husband had suddenly announced that he no longer wanted to be married and intended taking a year-long sabbatical.
Years later, after changing attorneys twice, she sought permission to rewrite her defence and counterclaim entirely. The proposed amendments transformed the case from one about an abrupt separation into one alleging that the marriage had never functioned normally because her husband preferred men and had engaged in affairs stretching back to the early 2000s that ultimately caused the relationship to collapse.
Wife says shame kept her silent
One of the husband’s strongest objections was that his wife was attempting to change her version of events nearly four years after the divorce proceedings began.
The judge agreed that she was presenting a materially different case but found that she had given a sufficiently credible explanation.
According to her affidavit, previous attorneys had advised her to rely on the conventional reasons commonly pleaded in divorce cases. Only after consulting her latest legal team did, she realised that her husband’s conduct could be relevant to maintenance under the Divorce Act.
She said discussing what had happened during the marriage was emotionally overwhelming.
She described herself as a conservative and religious person who had been too ashamed to confront what she called years of humiliation, particularly regarding her husband’s alleged sexual orientation and requests she found degrading. She said she had wanted to shield her children, relatives and wider community from those experiences.
The judge said there was little reason to reject that explanation at this stage of the proceedings.
Rejecting the husband’s argument that alleged misconduct dating back many years could not have contributed to the eventual breakdown because his wife remained married to him, Greig remarked that many people stay in unhappy marriages for years or even decades.
No-fault divorce does not end the inquiry
A central issue was whether allegations about a spouse’s sexual conduct still matter in a legal system that no longer requires fault to obtain a divorce.
The husband argued they did not. However, the court disagreed.
Greig pointed to section 7(2) of the Divorce Act, which specifically allows courts deciding spousal maintenance to consider the parties’ conduct where it is relevant to the breakdown of the marriage. The judge acknowledged that some modern decisions have questioned whether fault should continue playing any role in maintenance awards, but said Parliament has never removed that provision from the legislation.
Although the wife was permitted to pursue her broader case, the judge sharply criticised the way it had been drafted.
Her proposed counterclaim contained 50 separate allegations, many dealing with the husband’s alleged sexuality, suspected relationships with men and intimate aspects of the couple’s private life. Some allegations were framed as suspicions or beliefs rather than established facts.
The court found that while allegations of conduct leading to the breakdown of the marriage could legitimately be pleaded, the document went much further than necessary.
Greig said pleadings should set out the bare outline of a case rather than descend into “full flood” detail, warning that repeated degrading accusations could sidetrack litigation and unfairly prejudice the opposing party.
The judge therefore removed numerous paragraphs, including repeated allegations about explicit sexual requests, repeated assertions that the husband failed to deny being gay or bisexual, claims based only on suspicion, and statements describing his conduct with inflammatory language rather than factual allegations.
However, the court allowed more restrained allegations that directly addressed the state of the marriage and the husband’s alleged conduct without unnecessary embellishment.
Summing up, Greig said the amendment ensures the parties’ real dispute can be properly ventilated while stripping away allegations that crossed the line into harassment.
The judgment concluded that the wife should be allowed to present the essential elements of her case, but not “the minutiae of fifty different events and interactions in language which is often inflammatory.”
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