key to the study guide - Name

Clean-break principle
You should also know what the ``clean break'' principle is. This principle is
referred to on page 140 of your textbook and in the note on the Beaumont
case in your casebook (the fourth par on p 230). You must ensure that you
know what it means, and how and in which circumstances it can be applied
in South African law.
In Esterhuizen's case, which is discussed in detail on pages 141±142 of the
textbook, the court even held that section 7(3) of the Divorce Act actually
serves two distinct purposes, one being compensation of a spouse for past
contributions rendered to the maintenance or increase of the other spouse's
estate, and another being provision for the applicant spouse's maintenance
needs. This case is, however, justly criticised by the authors of your textbook
on pages 141±142. Make sure that you know what Cronje and
Heaton's arguments against this decision are. This criticism also applies to
the Jordaan decision (discussed above under ``scope of any other factor'') in
which the court solely took Mrs Jordaan's maintenance needs into
consideration when determining the amount of money Mr Jordaan had to
pay her in terms of the redistribution order. In assessing the amount, the
court looked only at how much money Mrs Jordaan would need for future
maintenance whilst maintaining the same standard of living as during the
marriage.
When you study the criticism against the Esterhuizen case (which, as
mentioned above, also applies to the Jordaan case), you should firstly take
note of the decision in Zwiegelaar v Zwiegelaar which is dealt with in
paragraph 2.4 of the next study unit. Secondly, you should keep in mind
that, should the supreme court of appeal later decide that it is acceptable
to grant a lump-sum maintenance order in terms of section 7(2) of the
Divorce Act, the criticism will fall away.
5 THE CRITERION FOR ESTABLISHING THE EXTENT OF THE REDIS-
TRIBUTION
This matter is discussed in your prescribed textbook on pages 142±145
andinthenoteontheBeaumont case in your casebook (pp 229±230).
One-third ``rule'' You will see in your textbook on page 142 that the so-called one-third
``rule'' used to be accepted as a starting point in English law. You must
ensure that you know what this ``rule'' entailed. Note in particular that in
Beaumont v Beaumont the appellate division declined to accept the one-third
starting point or, for that matter, any starting point. When a court has to
decide what amount is to be transferred, the court Ð according to this
decision of the appellate division Ð has to make an assessment of what is
just, having regard to the factors mentioned specifically in the Act and
whatever else the court deems relevant.
Principle of equal
division
Also note that currently the principle of an equal division applies in
England. On pages 143±144 of your textbook and on pages 229±230 of
thenoteontheBeaumont case you will notice that Childs v Childs and
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