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Family and Divorce law in South Africa - A Comprehensive Guide
  • Home
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    • The Reasons for Divorce
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      • Marriage out of Community of Property, new case
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        • Understanding Post-1984 Marriages
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      • Anti-Dissipation Interdicts Divorce
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      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
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    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
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      • Can I hide assets in Trust?
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    • International Divorce Law >
      • UK Divorce Laws
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    • On-line Divorce
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    • Divorce Statistics
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    • Rebuilding Your Financial Life
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    • Ingredients of a successful relationship
    • What are the elements of a successful marriage?
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
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    • How to calculate Child Maintenance?
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    • Rule 43 Interim Maintenance Pending Divorce >
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    • Section 28 of the Children's Act
    • Relocation and Child Abduction >
      • Frequently Asked Questions about Child Relocation
      • Child Relocation to New Zealand
    • The Hague Convention >
      • Child Participation in South African Family Law and the Hague Convention
      • International Child Custody Law South Africa
      • Hague Applications and Domestic Violence
      • Mirror Orders and the Hague Convention
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Unmarried Fathers Rights
    • Parenting Plans >
      • Parenting Plan
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Suspending Parental Rights
    • The Law on Grandparents Rights over Children
    • Parental Alienation >
      • Alienating Children
      • Parental Alienation Imprisonment
      • What is the effect of Parental Alienation on children?
    • Living Arrangements
    • What effect does divorce have on children?
    • The Voice of the Child in Divorce
    • Facilitation
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • Domestic Violence Legislation and Case Law
    • The New Domestic Violence Act 14 of 2021
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Evicting a Spouse
    • Being married to a Narcissist.
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    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse >
      • Economic Abuse
    • What is Stalking
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    • Interdict Intimate photos
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    • Harassment >
      • Harassment Forms
  • Cohabitation
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Lenferna v Lenferna (120/13) [2013] ZASCA 204

3/23/2014

 
Picture
The primary issue between the parties had been whether the law of Mauritius or of South Africa governed their proprietary rights upon divorce. Put simply, the proper law of the marriage had to be determined. 

The parties were married to each other on 29 June 1983 in Mauritius. A month later they moved to South Africa and continued to live here until their divorce in November 2011. In about July 2006 the respondent, the wife (plaintiff in the court below) sued the appellant, the husband (defendant in the court below) for divorce in the South Gauteng High Court, Johannesburg, contending that the marriage relationship between her and the respondent had irretrievably broken down.

In her particulars of claim the plaintiff alleged that at the time of her marriage to the defendant he was domiciled in Mauritius and that the proprietary consequences of the marriage ‘are governed by the law of Mauritius’, alternatively, that the parties were married to each other in Mauritius according to the laws of South Africa and that the proprietary consequences of the marriage ‘are accordingly governed by the law of South Africa’. On either basis, she alleged that during the subsistence of the marriage she had contributed to the maintenance and or increase of the husband's estate by the rendering of services and the saving of expenses, which otherwise would have been incurred. She listed the contributions she had made in cash and in kind. She claimed that it was just and equitable that her husband be directed to transfer to her such part of his assets so as to effect an equal division between the parties of their combined net asset values, alternatively, that he pay to her the monetary equivalent thereof. In a further alternative she claimed that the parties were married according to South African law in community of property.

In his plea the husband pleaded that at the time of their marriage he and his wife had agreed that their matrimonial regime would be governed in terms of the provisions of Mauritian law, and in particular in terms of the provisions of the regime legal de separation de biens - separation of goods. The husband pleaded that at the time of the marriage, he and his wife had made a declaration that their marriage was to be governed by the regime legal de separation de biens which was recorded by a marriage officer. The husband pleaded further that in terms of the said regime each party retains its separate estate during the marriage and on dissolution thereof, neither party has a claim against the estate of the other party. 

At common law, the proprietary rights of spouses are governed, in the absence of express agreement, by the law of the husband’s domicile at the time of the marriage (lex domicilii matrimonii or the law of the matrimonial domicile) (Frankel’s Estate & another v The Master & another 1950 (1) SA 220 (A) at 241; Sperling v Sperling 1975 (3) SA 707 (A) at 716F-G; Esterhuizen v Esterhuizen 1999 (1) SA 492 (C) at 494C-D; C F Forsyth Private International Law: The Modern Roman-Dutch Law Including the Jurisdiction of the High Courts 5 ed 2012 at 295). The rationale for this rule, according to the Roman Dutch and Civilian authorities, is that the parties are assumed in the absence of any indication to the contrary, to have intended to establish their matrimonial home in the country where the husband was domiciled at the time of the marriage and to have submitted themselves to the matrimonial regime obtaining in that country. 

This court assessed the evidence and determined that, at the time of his marriage, the appellant had in fact been domiciled in Mauritius, and accordingly that Mauritian law governs the proprietary regime of the marriage. In analysing Mauritian law, this court held that the separation of goods regime provides that each party to a marriage retains its separate estate during the marriage, and that on dissolution thereof neither party has a claim against the estate of the other unless they have funded the acquisition of particular assets in the other party’s estate, to which they would then be entitled a share. However, as in this matter there is insufficient evidence to show that the respondent contributed to the acquisition of either of the properties of which she sought a share, she has not made out a claim to either of them. Accordingly, the appeal is upheld with costs, and the respondent’s claim for 50 per cent of the value for the properties concerned is dismissed. 

Ngewu and another v Post Office Retirement Fund and others [2013] 1 BPLR 1 (CC)

3/21/2014

 
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In terms of the Pension Funds Act, No 24 of 1956 and the Government Employees Pension Law Amendment Act, No 21 of 1996, the pension interest is payable at the time of divorce. This is known as the 'clean-break' principle).

Until recently, however, a payment governed by the Post Office Act is only payable upon termination of membership by the member in the fund (through death, retirement or resignation). 

In the decision of Ngewu and another v Post Office Retirement Fund and others [2013] 1 BPLR 1 (CC), the Constitutional Court had to decide when pension benefits accrue to divorced spouses where Mrs Ngewu was married to a Post Office employee who was a member of the Post Office Retirement Fund. It was common cause that Mrs Ngewu was entitled to a 50% share of her husband’s pension interest. However, under the rules of the Fund, her share would not accrue upon divorce but only when Mr Ngewu terminated his membership in the Fund. 

All parties agreed that the Post Office Act, No 44 of 1958 was unconstitutional in so far as it did not provide for the payment of the pension interest at the time of divorce. 

The Constitutional Court held that this differentiation violated the right of equality before the law and equal protection and benefit of the law. Consequently, the Constitutional Court declared s10 to 10E of the Post Office Act unconstitutional but ordered that the declaration of invalidity be suspended for eight months for the legislature to cure the defect. The defect was subsequently cured in terms of the Government Employees Pension Law Amendment Act. 

As a result of the judgments in the present case as well as the Wiese v Government Employees Pension Fund and Others (CCT 111/11) 2012 (6) BCLR 599 (CC) case, the assigned portion of the pension interest would be deemed to have accrued as is payable on the date of the divorce order.

MB v DB 2013 (6) SA 86 (KZD) 

3/21/2014

 
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The decision in MB v DB 2013 (6) SA 86 (KZD) concerned a divorce action between parties married out of community of property with the application of the accrual system. The issue was which party bore the onus of proof with regard to the nature and quantum of the assets excluded in their antenuptial contract from forming part of the accrual in the defendant’s (the husband’s) estate. The plaintiff (wife) relied on the evidence of a chartered accountant to prove the value of the husband’s estate and, therefore, of her potential share of the accrual. The husband led no evidence to demonstrate how he had dealt with the excluded assets over time, instead contending, inter alia, that: 

  1. his ex-wife’s claim was premature, since the extent of the assets and liabilities could be determined only as at the date of divorce; and 
  2. there was no proof of the current value of his estate because the evidence that she had sought to rely on was incomplete and in any event hearsay and therefore inadmissible.

Lopes J held that it was the husband, being the one in possession of all the facts relating to the assets reflected as excluded in the antenuptial contract, who bore the onus of proving which assets were to be excluded and why; to demonstrate what had happened to those assets, how they were converted from time to time, and what their present values were that fell to be excluded from the calculation of his net worth. 
 
The operative moment when the value of the respective estates of the parties had to be assessed was at litis contestatio, (ie, close of pleadings) not when the divorce order was made. 
 
Because the husband led no evidence to demonstrate how the excluded assets were dealt with by him from time to time, the court held that it would not be possible to determine what had happened to those excluded assets without making reasonable deductions from the discovered documents. 
 
The court reasoned that South African courts should follow the approach to evidence adopted in a number of English cases when dealing with failure by a party to discharge his or her duty to disclose financial information in divorce proceedings. In terms of the approach followed in English law, courts were entitled to draw inferences (where they  can be properly made) and to take notice of inherent probabilities in deciding whether or not assets formed part of the non-discloser’s estate. 
 
The court accordingly ordered the division of the husband’s estate, the exact details of which fall outside the scope of the present discussion. The husband was ordered to pay the costs of the present action. 

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  • Home
  • Divorce
    • The Reasons for Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage out of Community of Property, new case
      • Marriage in Community of Property
      • Marriage out of community without accrual >
        • Understanding Post-1984 Marriages
      • Marriage out of community with the inclusion of the accrual
      • Anti-Dissipation Interdicts Divorce
      • Universal Partnerships
      • Antenuptial Contracts
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
      • Postnuptial Contracts
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce >
      • Can I hide assets in Trust?
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • Expat South African Divorce
    • International Jurisdiction
    • Spousal Visas
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Divorcing a Narcistic Spouse
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Ingredients of a successful relationship
    • What are the elements of a successful marriage?
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
      • Rule 43 Maintenance
    • The Maintenance Manual
    • Grand Parents and Maintenance
    • Variation of Maintenance due to loss of employment
    • Contempt of Court Maintenance
  • Children
    • Section 28 of the Children's Act
    • Relocation and Child Abduction >
      • Frequently Asked Questions about Child Relocation
      • Child Relocation to New Zealand
    • The Hague Convention >
      • Child Participation in South African Family Law and the Hague Convention
      • International Child Custody Law South Africa
      • Hague Applications and Domestic Violence
      • Mirror Orders and the Hague Convention
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Unmarried Fathers Rights
    • Parenting Plans >
      • Parenting Plan
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Suspending Parental Rights
    • The Law on Grandparents Rights over Children
    • Parental Alienation >
      • Alienating Children
      • Parental Alienation Imprisonment
      • What is the effect of Parental Alienation on children?
    • Living Arrangements
    • What effect does divorce have on children?
    • The Voice of the Child in Divorce
    • Facilitation
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • Domestic Violence Legislation and Case Law
    • The New Domestic Violence Act 14 of 2021
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Evicting a Spouse
    • Being married to a Narcissist.
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse >
      • Economic Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Interdict Intimate photos
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment >
      • Harassment Forms
  • Cohabitation
    • Universal Partnerships in South African Cohabitation
    • Maintenance and Cohabitation
    • Interim Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
  • Formalities for marriage in south africa
    • South Africa's New Marriage Bill: A Step Towards Equality and Inclusion
    • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • New Family Law Cases
    • Register for the Online Family Law Course
  • About the Author
  • Contact
  • Charities