Beaumont v Beaumont 1987 (1) SA p 967 (A): This was an appeal against a decision of Kriegler J in the WLD. This is regarded as the locus classicus on the subject of redistribution orders, giving the legal practice some certainty on how these orders in terms of section 7 should be approached. Kriegler J in the court a quo employed the one third approach followed by English Courts as a point of departure in redistribution orders. The appellant’s assets amounted to R450 000 and the court a quo ordered that R150 000 be paid to the respondent. The court also ordered that the plaintiff pay maintenance to the defendant in the amount of R1 400 per month until he had paid her the R150 000, whereafter the maintenance would decrease to R700 per month. The parties were married in 1964 and prior to the conclusion of the marriage entered into an antenuptial contract in terms of which community of property and profit and loss was excluded. Neither party had any assets at the time that they were married. The appellant (the husband) was regarded by the court as a very hardworking man he had built up a very successful business and became a rich man.[11] The nett value of his estate was R450 000. The respondent (the wife) worked occasionally between her pregnancies during the early part of the marriage. She later only ran the household and raised the children, with limited assistance from a housekeeper.[12] The court a quo regarded the wife’s contribution as significant and that it allowed the appellant to become a rich man. The appellant verbally abused the respondent. Before the respondent left the home, he stopped paying any money to her and told her to fend for herself. He forced her into a divorce. His matrimonial misconduct was regarded by the court a quo as “certainly gross and prolonged”.[13] The respondent could not find work and had little chance of finding work as she had no qualifications; the children were young and in her care and one required assistance with reading and writing. The net value of the assets that she had in her possession did not exceed R3 000; she took some furniture and a car with her when she left the house. The exercise of the court’s Judicial discretion in terms of section 7(3) The court encapsulated the measure that section 7(3)’s redistribution order sought to redress in the following sentence: “…the inequity which would flow from the failure of the law to recognise a right of a spouse upon divorce to claim an adjustment of a disparity between the respective assets of the spouses which is incommensurate with their respective contributions during the subsistence of the marriage to the maintenance or increase of the estate of the one or the other.”[14] The court discussed and emphasised the very wide discretion that was conferred upon the court by Section 7(3).[15] The court did not want to lay down hard and fast guidelines to use in the exercise of the discretion granted by section 7(3) as there is an infinite variety of circumstances under which this discretion would be exercised. The interaction between ss 2 and 3 and the relevance of the “clean break” principle In discussing the interrelationship between subsections 2 (relating to maintenance) and 3 (relating to the redistribution of assets), the court confirmed that in considering a redistribution order in terms of section 7(3), the court should consider the possibility of making an order in terms of section 7(2).[16] The court acknowledged the merits of the “clean break” principle and the fact that an order in terms of section 7(3) (as opposed to an order in terms of section 7(2) would promote a “clean break”; that making an order in terms of section 7(3) with no order in terms of section 7(2) would ensure a “clean break”. To what degree the principle can be adhered to from case to case, will be determined by the facts of each specific case and what the court regards as just under those circumstances. The court acknowledges that although the clean break principle is ideal, it will not always be possible to adhere to. The following passage can be regarded as important in this regard: “There will no doubt be many cases in which the constraints imposed by the facts (the financial position of the parties, their respective means, obligations and needs, and other relevant factors, will not allow justice to be done between the parties by effecting a final termination of the financial dependence of the one on the other. In the end everything will depend on the facts and the court’s assessment of what would be just.” The one party will not always be in a position to satisfy the other party’s need through a once-off capital payment and strict adherence to this principle may cause hardship to either or both parties.[17] Misconduct: The role of misconduct in a redistribution order was placed into context by the court and the following passage is quoted as being relevant for purposes of the matter: “In our legislation, as I have pointed out, the feature of overriding importance is that the Court will grant such order, in respect of both ss (2) and ss (3) as it considers just. … In many, probably most, cases, both parties will be to blame, in the sense of having contributed to the break-down of the marriage (see Lord Denning in Wachtel’s case supra at 835 G). In such cases, where there is no conspicuous disparity between the conduct of the one party and that of the other, our courts will not indulge in an exercise to apportion the fault of the parties, and this nullify the advantages of the ‘no fault’ system of divorce.”[18] The court decided that the court a quo was justified in taking into account the appellant’s misconduct as it was ‘certainly gross and prolonged’.[19] The court did not want to lay down guidelines as to how misconduct must be taken into account by a court, but in this particular matter it held that the scales of justice, where they are balanced, should be tipped in favour of the party against whom the misconduct was perpetrated and where both parties are to suffer hardship, the one who made himself / herself guilty of misconduct, must suffer that hardship rather than the one who was at the receiving end thereof.[20]
Posted on: Tue, 29 Oct 2013 17:22:54 +0000
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