key to the study guide - Name

Equal distribution
between spouses not
necessary
Distribution =
awarding of damages
184
Bezuidenhout v Bezuidenhout referred to this development in English law,
and followed it. However, as the supreme court of appeal in the meantime
rejected the Bezuidenhout decision in Bezuidenhout v Bezuidenhout 2005 (2)
SA 187 (SCA), you need only read the discussion of this case on pages
143±144 of your textbook, and in the note on the Beaumont case in your
casebook. Take note that the supreme court of appeal decided that though
comparative legal study is of great value, English cases should be
approached with circumspection. The court made it clear that our courts
are not entitled as a matter of course to divide the joint net assets of the
parties equally, regardless of the parties' respective unequal contributions.
The Beaumont decision was confirmed, and it was decided that the courts'
discretion to redistribute assets upon divorce should not be fettered by any
guidelines. According to the court the greater role that Mr Bezuidenhout
played in the success of the parties' business was an important factor that
had to be taken into account. The court subsequently ordered a 60:40
division of the parties' joint assets. In a subsequent case, Kirkland v Kirland
[2005] 3 All SA 353 (C), the court held that the principle of equality was
however not rejected in the latter Bezuidenhout case, but that the supreme
court of appeal merely found that this principle did not fit the facts of that
particular case.
In the textbook it is further explained that marriage is not normally a
partnership in the legal sense of the word and that, consequently, it is
unnecessary to divide the assets equally between the spouses when they
divorce. In this regard you must also study the second paragraph of the
note on Kritzinger v Kritzinger on page 238 in your casebook.
It is also explained in the textbook that a redistribution order should not
be used in such a way that damages are awarded to a spouse. This aspect is
also referred to in the last paragraph of the note on Kritzinger v Kritzinger
on page 238 in your casebook.
6 THE FORM A REDISTRIBUTION ORDER MAY TAKE
The form that a redistribution order can take is discussed on page 145 of
your textbook. You will see that the court has a wide discretion in this
regard too, although the court may not make a redistribution order of its
own accord. You should note that the court may impose such conditions as
it deems just for the satisfaction of its order. Furthermore, the court is not
bound to order the transfer of a specific asset or assets Ð it may order that
a sum of money be transferred in lieu of the asset or assets.
ACTIVITY
YoucameacrossthecaseofBeaumont v Beaumont several times in this study
unit. Read this prescribed case on pages 225±230 of your casebook and
then once again go back and work through those sections of the study unit
applicable to this case. Now summarise the five most important aspects of
this decision.