key to the study guide - Name

4 OTHER CONSIDERATIONS THE COURT TAKES INTO ACCOUNT
Considerations The other considerations which the court takes into account, apart from
the applicant's contributions, are set out in section 7(5) of the Divorce Act.
These considerations are listed from (1) to (4) in your prescribed textbook
on page 138. You must know what these considerations are and must not
confuse them with the factors which the court must take into
consideration in terms of section 7(2) of the Divorce Act in respect of
the granting of a maintenance order. (The provisions of s 7(2) and
maintenance orders are dealt with in the next study unit.)
Scope of ``any other
factor''
Can misconduct be
taken into account?
Must fact that
maintenance order
will be issued, be
considered?
182
On page 138 of your textbook it is indicated that the last consideration
that is mentioned in section 7(5), namely ``any other factor which in the
opinion of the court should be taken into account'' is put extremely widely.
You have to study the discussion of the case law on section 7(5)(d) on pages
138±139 of your textbook. You must know whether the courts will look at
assets such as inheritances, legacies, donations and trust benefits which
one spouse acquired when considering a redistribution order.
4.1 Misconduct
It seems that our courts will, in terms of the last consideration (``any other
factor''), also look at the spouses' conduct. In this regard you must study
the section under the heading ``(a) Misconduct'' on pages 139±140 of the
textbook. You must, however, note that in Beaumont v Beaumont the court
held that a conservative approach to the matter of misconduct should be
adopted. Only if the breakdown of the marriage resulted from the
misconduct of one party only, is this a factor that has to be taken into
account Ð especially if the misconduct is found to have been gross and
prolonged. In this regard you must also note the note on Beaumont v
Beaumont (third-last par on p 230) as well as the note on the Kritzinger case
(p 238) in your casebook.
4.2 The interrelationship between sections 7(2) and 7(3), and the cleanbreak
principle
It also appears from the Beaumont case (see the third par on p 230 of the
casebook and p 140 of your textbook) that the court may not disregard
the possibility of issuing a maintenance order when considering
redistribution. The court must decide whether equity and justice would
best be served if only a maintenance order, or only an order for
redistribution, or both were issued. Therefore there is an interrelationship
between a maintenance order and a redistribution order.
In KatzvKatzthe interrelationship between the two subsections was also
mentioned.