THE High Court has granted a final divorce to a couple who had lived apart for more than 13 years, ruling that their marriage had effectively died and could no longer be salvaged.
Justice Nkosinathi Maseko found that both husband and wife were guilty of constructive and malicious desertion while the husband had also committed adultery, resulting in the birth of a child outside the marriage.
The parties were married by civil rights and in community of property on October 20, 2006. Their relationship deteriorated over the years before they separated on March 11, 2012.
Justice Maseko said the circumstances made it impossible for the court to order the restoration of conjugal rights, particularly because the parties had not lived together as husband and wife for more than 13 years.
“There is no longer any marriage between the parties; the marriage died on March 11, 2012 and what remains is the marriage certificate,” the judge ruled.
The husband testified that he had asked the wife for breakfast, but she allegedly responded that she was not his maid, which then angered him.
The wife disputed this version, saying the husband had returned from a meeting held at umphakatsi visibly angry before allegedly throwing her belongings outside the house while it was raining.
Her sister, who testified as a defence witness, said she arrived after the wife had contacted her. She attempted to establish what had happened, but the husband allegedly told her that he wanted nothing to do with his wife.
The sister subsequently called their brother, who fetched the wife and her belongings from the matrimonial home. Several family meetings were later held in an attempt to reconcile the couple, but they failed.
During one meeting, the husband maintained that he wanted nothing to do with the wife.
The court heard that the wife’s uncle subsequently instructed her to return home and ahlale ngentfombi, meaning she should maintain her purity and integrity by not engaging in adulterous relationships.
The wife, however, testified that the husband was violent and had assaulted her on several occasions, adding that she reported the abuse to the Mbabane Police Station.
The husband, on the other hand, accused his wife of verbally abusing and belittling him. He testified that she had allegedly told him to hang himself in the forest and threatened that, if he did not, she would send people to burn him in the house.
He said the threats left him living in fear and that he reported them to the police.
The judge also considered a disputed compensation payment of about R900 000 which the wife received from South Africa’s Road Accident Fund during the subsistence of the marriage.
The husband said he had assisted her extensively with the claim and had also provided transport to her and her mother on numerous occasions. He alleged that the wife used the compensation to renovate her parental homestead at Sidwashini instead of improving the matrimonial home.
A First National Bank statement produced by the wife, dated October 2, 2025 showed a balance of E47 012.97.
Justice Maseko found that the parties’ conduct demonstrated that the marriage had irretrievably broken down.
He said the prolonged separation, allegations of violence, threats, distrust, the RAF compensation dispute and the husband’s subsequent child with another woman, all pointed to the collapse of the marriage.
The court also found that the matrimonial home, situated at Manyisa, at Ekupheleni Chiefdom on Eswatini Nation Land fell under the jurisdiction of the Ekupheleni Royal Kraal.
Justice Maseko cited previous authorities which criticised the country’s fault-based divorce laws, noting that forcing couples to remain in failed marriages could contribute to domestic violence and other problems.
He held that granting a restitution order in the circumstances would be inappropriate, particularly following the enactment of the Sexual Offences and Domestic Violence Act of 2018.
A final decree of divorce was therefore granted on the grounds of both parties’ constructive and malicious desertion and the husband’s adultery.
The names of the parties were omitted to protect the dignity and identification of the minor children in the matter.
