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FEEDBACK
In the first place, the court referred to the one-third rule in terms of which
the court awards one-third of the total value of the spouses' assets to the
spouse with the smallest estate on divorce. However, the court expressly
rejected the suggestion that there should be guidelines like the one-third
rule according to which the court should exercise its discretion in terms of
section 7(3). According to this case, the court, in exercising this discretion,
should make a judgment which is fair in the light of all the factors which
are specifically mentioned and all the considerations which the court
regards as relevant.
In the second place, it appears from the case that the court cannot
disregard the possibility of making a maintenance order when considering
a redistribution. The court must decide whether fairness and justice will
best be served if only a maintenance order or only a redistribution order, or
both are granted. Therefore, there is an interrelationship between a
redistribution order and a maintenance order.
In the third place, the court referred to the ``clean break'' principle.
According to this principle, there should be a ``clean break'' between the
divorcing parties if one of them is wealthy enough to enable the court to
make an order which will put the poorer spouse in the financial position to
maintain himself or herself. The court rightly indicated that the ``clean
break'' principle is not foreign to our law and that it is something to be
strived for if the circumstances permit it.
In the fourth place, the court decided that conduct can be taken into
account in determining the redistribution of assets on divorce. However,
the court further held that the entire matter of conduct had to be
approached very carefully. Only where the breakdown of the marriage was
solely as a result of misbehaviour on the part of one of the parties could it
be a consideration Ð especially if it were found that the conduct had been
gross and prolonged.
In the fifth place, the court decided that section 7(4) can be interpreted in
such a way that any contribution made by a spouse during the existence of
the marriage is sufficient to be considered as a contribution in terms of the
section. The ordinary duties of a housewife will therefore also qualify as a
contribution.
ACTIVITY
Draw a distinction between forfeiture orders (which were discussed in the
previous study unit) and redistribution orders (which are discussed in the
present study unit). You should cover the following aspects when making
the distinction:
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