Notes Chapter 12

CHAPTER 12: PATRIMONIAL CONSEQUENCES OF DIVORCE

 

·                 Sec 6-10 Divorce Act deals with same.

 

 

Settlement Agreements:

·                 Regulate consequences of divorce by SA.

·                 Division of assets, maintenance, parental responsibilities, liabilities and costs.

·                 May include anything as long as possible and not illegal.

·                 Sec 7(1) maintenance – SA in writing. Empowers the court to make an order in accordance with a written agreement between the parties.  Therefore does not have to inc SA in divorce order eg KZN.

·                 Court can make other order as SA or accept only parts of the SA.

·                 Kotze v Kotze = refused to confirm a clause where parents undertook to educate kids in a particular church – violated the child’s freedom of religion.

·                 If court declares SA “binding”  = not to say inc SA in order.

·                 A term that has been made an order of court can be amended etc by mutual agreement.

·                 If refuse to agree can approach court ito Sec 8 (1) if relates to guardianship, contact, care or maintenance. If only maintenance – maintenance court.

 

Patrimony of spouses

 

·                 Appoint liquidator if no agreement, no fault based – misconduct still plays a role as fault is taken into account with forfeiture of benefits and redistribution orders.

 

Division of pension interest

·                 Sec 7(7) is deemed as part of assets upon divorce.

·                 Maharaj v Maharaj = pension is part of the patrimonial benefit.

·                 Calculation of value of pension interest= page 127. The amount entitled of terminated.

·                 Pension interest (interest not yet accrued) vs pension benefit (benefit which has accrued).

 

Payment if non-member’s portion:

·                 Sec 7(8) court can order pens fund to pay directly to non-member.

·                 Must endorse fund –proof.

·                 No provision for interest growth – sec 37D(4) Pension Fund Act   

·                 Provisions of pension not applicable to spouses who married on/after 1 Nov 1984 ito ANC.

 

 

Forfeiture of Benefits:

·                 Sec 9(1): requirements – duration of marriage, circumstances led to breakdown, any substantial misconduct.

·                 Wijker v Wijker = not all factors need to be present.

·                 Other party must be unduly benefited if order is not granted, (factual question of value judgment).

 

What can be forfeited?

 

·                 Does not mean loses own assets, only loose the claim he/she has to the other’s assets.

·                 In community of property (asset brought in/accrued) or accrual (accrued) – forfeit your right to claim portion.

 

Redistribution orders:

 

·                 Accrual system is not retroactive therefore sec 7(3) and 7(6) Divorce act to assist prior to MPA to empower the court to make an order of assets to be transferred if the court finds it just.

·                 Requirements: if married prior MPA with ANC excluding all or prior to Marriage and Matrimonial property law amendment act.

·                 Party that claim must set detail.

·                 Remainder is elf-study.  Sec 7(30 and 7(6) not applicable to foreign marriages – therefore Sec 7(9) empowering RSA courts to order redistribution of assets in the court of the foreign state that has power.

·                 Proof: the spouse seeking redistribution order should have contributed directly/indirectly to the maintenance/increase of other spouses estate and court must be satisfied that it is equitable and just.

·                 Must proof contribution – Buttner v Buttner

·                 Nature of the contributions: rendering services, saving expenses, any other manner.

·                 Beaumont v Beaumont: cover any contribution if interp wording. Kritzinger v Kritzinger where husband declined position in New York to stay with wife and her business. He argued that he contributed. Was successful.

·                 Other considerations: Sec 7(5) : also look at existing means and obligations of the parties; any donation received during marriage, any forfeiture order, any other factor.

·                 Misconduct: Only 1 party’s misconduct – not applicable of both misconduct.

·                 Interrelationship between sec &92) and 7(3): Beaumont v Beaumont  -self study

·                 Assets for redistribution: all assets, including inherited /donations.

·                 Kirkland v Kirkland : value of monthly income form RA was taken into account.

·                 Form of redistribution order; not necessarily a asset can also order transfer money to the value. Therefore court may interfere.

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