Patrimonial consequences of divorce

Question 1

What are the patrimonial consequence of marriage determined by?

Answer 1

The matrimonial systems that governs the marriage

Question 2

What will happen to the estate of the spouse if they are married on community of property?

Answer 2

The divorce order will automatically divide the estate into two unless unless a forfeiture of patrimonial benefits order is granted

Question 3

What is meant by a forfeiture of patrimonial benefits order?

Answer 3

the court says one spouse must forfeit their share

Question 4

What happens in the case where the spouses doesn’t agree to the division?

Answer 4

a LIQUIDATOR may be appointed to sell the assets, pay the debts and distribute the remainder of the money.

Question 5

Which sections of the Divorce Act regulates the issue of pension interest?

Answer 5

Section 7(7) and 8

Question 6

Which section of the divorce act regulates the distribution of assets?

Answer 6

S7(3) and S6

Question 7

What does S7(3) says?

Answer 7

It give the court the discretion to to make an order for distribution of assets for certain marriages.

Question 8

What is the intention of the order for the distribution of assets?

Answer 8

to assist parties who did not have the accrual system available to them when they were married.

Question 9

Whom of the parties is entitled to apply for the court order?

Answer 9

Either of the spouses.

Question 10

Can the spouse request that all/some of the assets be transferred to the spouse?

Answer 10

Yes, however the court will conclude such in a divorce order if they think it’s fair

Question 11

when can the distribution of assets be ordered?

Answer 11

Cases of divorce only not death.

Question 12

When should the application for the distribution of assets be made?

Answer 12

During the divorce proceedings not after the divorce.

Question 13

Which date determines the assets and liabilities?

Answer 13

The date in which the order is made.

Question 14

Cana the order be made if the defendant is insolvent?

Answer 14

No

Question 15

What are the stages that need to be followed for the distribution of assets to apply?

Answer 15

1. We check to which marriages does the court discretion apply to?
2. What must the applicant prove?
3. What is the quantum/extent of the transfer?

Question 16

Which section regulates the first stage?

Answer 16

S7(3)

Question 17

Which marriages does the discretion apply to ?

Answer 17

1. Marriages before 1 November 1988 with an ANC excluding, community of property, community of profit and loss and accrual.
2. Black persons who were married before 2 December 1984 and after 14 April notified the director general of home affairs to keep the matrimonial system.

And there is no deed of settlement.

Question 18

Which section regulates the second stage?

Answer 18

S7(4)

Question 19

What must the applicant prove?

Answer 19

The must prove on the balance of probabilities that they contributed directly or indirectly through a positive act to the growth/ maintenance of the other spouse during the marriage.

Question 20

In which forms can the contribution be made in terms of S7(4) ?

Answer 20

in the form of rendering services,
- saving expenses, or
- made in any other manner.

Question 21

What does the case of Beamount v Beamount says?

Answer 21

Held that the mere fulfilling of wife’s “traditional role” as wife and mother IS such a contribution (limiting of expenses, rendering of services, etc).

Question 22

What does the case of Kritzinger v Kritzinger?

Answer 22

He tried to claim for contribution of assets saying that he declined a job offer overseas because he was supporting the wife’s career, the claim failed

Question 23

What happened in Katz v Katz?

Answer 23

The court held that even indirect contributions counts even though they cannot be measured in money.

Question 24

What is the court’s discretion to transfer the assets in addition to the factual analysis?

Answer 24

Because of the contribution, it must be EQUITABLE AND JUST for the Court to order the transfer of assets. (Discretion)

Question 25

Which section regulates the third stage?

Answer 25

Section 7(5)

Question 26

Which guidelines are set out in S7(5) ?

Answer 26

1. The nature and the extent of the direct/indirect contribution of the spouse 2. The existing means of the parties. (assets and liabilities) 3, Donations made from one spouse to the other which is enforceable by an antenuptial contract 4. Any court orders that have ordered forfeiture of benefits. 5. any OTHER FACTOR which the court wishes to take into account (wide discretion

Question 27

What are the general principles that the court must take into account?

Answer 27

1. Misconduct. (Not to punish the spouse) 2. Starting point 3. Maintenance order 4. Clean break principle 5. pension fund 6. Trust fund (alter ego) Confirmed in bardenhorst case 7. Payment be deferred 8. Sum of money be paid instead of assets

Question 28

When will misconduct be taken into consideration?

Answer 28

where there is “a conspicuous disparity” between the spouses’ conduct

Question 29

What is a conspicuous disparity?

Answer 29

very clear and noticeable difference between how each spouse behaved during the marriage.

Question 30

What is conspicuous disparity also referred to as?

Answer 30

The conservative approach.

Question 31

What did the judge say in the case of Buttner v Buttner about the application of the conservative approach?

Answer 31

That it should only be applied if not doing so will result in not being fair.

Question 32

Which rules do not apply to our law?

Answer 32

One third rule and 50/50 rule.

Question 33

Which starting point was rejected in the case of Bounemount v Bounemnout

Answer 33

That in the constitutional dispensation of equality, the assets should be divided equally unless there was a reason no to do so.

Question 34

Why was the starting point rejected?

Answer 34

1. The approach was based on English law which differs from SA in terms of both the common law and the legislation. 2. According to our law, the parties can choose not to be married out of COP by a way of ANC and this is not the case in the English law. Although such marriage can result in unfairness this was the the precise reason for the enactment of S7(3) 3. Applying the starting point will be going against older court decisions like Beamount v Beaoumunt

Question 35

Why was S7(3) of the divorce act enacted?

Answer 35

This section was created specifically to provide fairness in divorce cases where the strict application of the matrimonial property system (like out of community of property without accrual) would otherwise lead to an unjust result.

Question 36

What does Brandon say about S7(3) ?

Answer 36

He said that the parliament deliberately created the section to limit the court's ability to interfere in the agreement of spouses, one of the limitation is that it applies only to marriages that were entered into before the matrimonial property Act

Question 37

What happened in the case of Buttner v Buttner?

Answer 37

In the case of Buttner v Buttner, the court did divide assets equally — but only after looking carefully at all the facts of that specific case. This means that equal division may happen in some cases, but not because of a rule or starting point. It’s a result based on what is fair in that particular situation.