top of page

Divorce Arbitration

Almost 30 years ago by sheer chance, I attended a meeting and was introduced to Divorce Mediation. For me it was a eureka! moment. I was immediately sold on mediation and ever since, have had the privilege of being involved in its propagation.

I relate the story because of an appeal I make to this audience. Somebody, or a group of you I hope, will take up the cudgels for the cause of divorce arbitration with the same enthusiasm and passion with which I took up the cause of mediation all that time ago. Help to bring it about. Without doubt, to my mind there is a desperate need to introduce arbitration into the ambit of divorce for a number of reasons which I shall adumbrate.

There is a major obstruction; Section 2 of the Arbitration Act of 1965 prohibits a reference to arbitration of any matrimonial cause or matter arising from it. Although the courts in two judgments namely Ressel v Ressel 1976 (1) SA 289 (W) and Pitt v Pitt 1991 (3) SA 863 (D) interpreted Section 2 restrictively its reasoning and in fact the whole rational for Section 2 is out of keeping with modern jurisprudential thinking. Therefore it will require an Act of Parliament to rescind Section 2. In the nature of things, this will not happen overnight. So what are the factors favouring the introduction of Divorce Arbitration?