Fischer v Fischer [1911] ZATPD 163 (7 December 1911)

Husband and Wife - Divorce - Bars - Deed of Separation - Revocation - Action for Restitution

A. deed of separation in form and ex facie irrevocable is nevertheless revocable by either of the parties, if the reasons which led to the separation have ceased to exist.

Where one party to a deed of separation claims restitution of conjugal rights, he must also claim that the said deed be set aside. Both claims may be made in one action.

A deed of separation provided that whereas the parties had agreed to live apart until certain disputes and differences might be adjusted and a reconciliation come to, neither party thereafter shall proceed to force the other by way of action or otherwise to restore conjugal rights. After the reasons which led to the separation had ceased to exist, the husband brought an action for restitution of conjugal rights and the wife made no appearance.

Held, that the husband should be allowed to amend his claim by including a prayer for the setting aside of the deed and thereupon should be granted a rule nisi.