Chapter 10 - The patrimonial consequences of divorce

Question 1

Settlement agreements

Answer 1

In terms of section 7(1) of the Divorce Act, the court may make an order with regard to the division of the spouse’s assets and the payment of maintenance in accordance with the spouse’s settlement agreement.

Question 2

Pension interests

Answer 2

A pension fund is not an asset in a person’s estate, because the right to claim the benefit only vests in the person when the benefit accrues to him or her.

Question 3

Meaning and calculation of pension fund

Answer 3

1. If the spouse is a member of a pension fund other than a retirement annuity fund as defined in section 1(1) of the Pension Funds Act 24 of 1956, the pension interest is the benefit to which the spouse would have been entitled had he or she terminated his or her membership of the fund on the date of the divorce by resigning from his or her employment.
2. If the spouse is a member of a retirement annuity fund, the pension interest is equal to all the spouse’s contributions to the fund up to the date of the divorce, together with annual simple interest on those contributions calculated at the rate the Minister of Justice and Constitutional Development prescribes in terms of the Prescribed Rate of Interest Act 55 of 1975.

Question 4

Requirements for forfeiture of patrimonial benefits order

Answer 4

1. The duration of the marriage
2. The circumstances which led to the breakdown of the marriage
3. Any substantial misconduct on the part of either spouse

Question 5

Benefits which can be forfeited

Answer 5

The generally accepted view is that forfeiture of benefits does not entail that a spouse loses his or her own assets. It merely entails that the spouse loses the claim he or she has to financial benefits generated by the other spouse.

Question 6

Prerequisites for redistribution of assets order

Answer 6

1. The spouses must not have entered into any agreement regarding the division of their assets.
2. They must have married each other before the coming into operation of the Matrimonial Property Act on 1 November 1984 or before the coming into operation of the Marriage and Matrimonial Property Law Amendment Act on 2 December 1988.

Question 7

The requirements for a distribution order

Answer 7

1. The spouse who seeks redistribution must have contributed directly or indirectly to the maintenance or increase of the other spouse’s estate during the subsistence of the marriage.
2. The court must be satisfied that, by reason of such contribution, it is equitable and just to make a redistribution order.

Question 8

Nature of the contribution to the maintenance or increase of the other spouse’s estate

Answer 8

1. By rendering services
2. By saving expenses which would otherwise have been incurred
3. In any other manner

Question 9

Other considerations the court may take into account

Answer 9

1. Misconduct
2. The interrelationship between sections 7(2) and 7(3) of the Divorce Act 70 of 1979 and the clean-break principle
3. Various other factors

Question 10

Assets which can be considered for purposes of a redistribution order

Answer 10

All the assets which fall into a spouse’s estate can be taken into account for the purpose of a redistribution order. This includes assets a spouse or received as donations during the subsistence of the marriage.

Question 11

The date on which the value of a spouse’s estate is to be calculated.

Answer 11

The value of the spouse’s estate must “so far as that is practicable: be calculated as of the date of the court order

Question 12

The form a redistribution may take

Answer 12

The court has a very wide discretion in for fa as the form of te redistribution order is concerned.