Litigation Over Principle In Divorce Matters

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You are going through an acrimonious Divorce. The reasons for the breakdown of your relationship are no doubt filled with emotional bitterness. After 20 years of being married, your Spouse decides that you no longer fit their idea of ‘happily ever after’. Because of this you want to get back at them and make them hurt just as much as you felt wounded when you received that Divorce Summons. This is a normal part of being human.

It is however important to not let this emotional resentment fuel the instruction you give to your Attorney or your Divorce Litigation could well end up litigating over principle, and not law. Believe it or not, some people believe that the purpose of a Divorce Attorney is to use the legal system to make the opposing party ‘bleed’ for hurting you. Principles are based on individual morals and the legal system in divorce matters is not structured to place blame and to enforce morals. The South African Divorce law has long adopted the ‘no-fault’ divorce doctrine.

Litigating over principle may have hard and real consequences such as heavy cost orders against you. At the end, you would have spent a lot of money on legal fees yourself and then end up contributing towards your ex’s legal fees as well. If you consider a Cost Order and legal fees a small price to pay for a chance to throw the last stone, you may want to stop and think. Although you may not realise this, you are actually causing the Children harm. Destroying what is left of your relationship with your estranged Spouse may cause more harm to the Minor Children that you might think. 

Constructive communication is essential for joint parenting after divorce. This will not be possible if you and your ex are no longer able to look each other in the eye due to an emotional battle during your divorce matter. Indirectly alienating your Children from your ex-Spouse is also a real possibility when the divorce litigation has caused uncontrollable resentment. Some experts have defined parental alienation as a form of child abuse.

This should be distinguished from divorces where there has been domestic violence of any kind. In those circumstances, the extreme emotional bitterness has most likely been established prior to divorce proceedings already. Using this type of acrimony to fuel your litigation (in the Domestic Violence Court), may be legitimate and cannot be seen as principle-based litigation.  

Litigation over principle may also have unwanted consequences for Attorneys when dealing with Divorces where there are Minor Children involved. Judge Brassey delivered a leading Judgement in the Brownlee v Brownlee matter heard at the South Gauteng High Court, and, herein placed a special duty on Attorneys dealing with Divorce and Family Law matters. Judge Brassey herein stated that the Parties have a duty to attempt settlement through mediation and reminded the Attorneys of their obligation to encourage their Clients to mediate prior to embarking on expensive and timeous litigation. The Judge capped the fees of the Attorneys who failed to advise their Clients to attempt mediation at an early stage. The Judge expressed his disapproval of the Parties’ conduct by making each Party bear their own costs.

I like to encourage divorcing Clients to think about and identify their end goals. One of their end goals is most likely to firstly get divorced, to ensure that the proprietary consequences are fair and to protect the best interests of the Children. However, once the bigger picture has been recognised it may become clear to the Client that years of costly litigation over revenge is simply not worth it.  This is a good example of the means not justifying the end.


Michelle Soutter

Practising Attorney

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