B.M.S v P.S (1317/2015) [2016] ZAECGHC 121 (1 November 2016)

B.M.S v P.S (1317/2015) [2016] ZAECGHC 121 (1 November 2016)

The court found that the plaintiff contributed to the accrual in the defendant's estate, albeit to a lesser extent. The marriage irretrievably broke down primarily due to the plaintiff's extramarital relationship and her confession to the defendant. Both parties had previously engaged in extramarital affairs, but the plaintiff's recent conduct was the decisive factor. The court held that the plaintiff should forfeit 80% of the patrimonial benefits in the accrual of the defendant's estate, specifically regarding the house and pension interest. The plaintiff is entitled to 20% of the accrual in the house and pension interest, with payment of the pension interest deferred until the...

Citation
[2016] ZAECGHC 121
Parties
Plaintiff: B M S; Defendant: P S
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
1 November 2016
Case Number
1317/2015
Procedural Posture
Divorce Application / Final Judgment
Outcome
Divorce granted; plaintiff forfeits 80% of patrimonial benefits in defendant's estate (house and pension interest); child custody and maintenance orders made; each party to pay own costs.
Judges
G H Bloem
Legal Topics
Divorce and Forfeiture, Pension Interest, Child Custody, Maintenance, Matrimonial Property Regime
Family and Children Land and Property Divorce and Forfeiture Pension Interest Child Custody Maintenance Matrimonial Property Regime

Case Brief

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Parties

B M S

Plaintiff

P S

Defendant

Procedural Posture

Divorce Application / Final Judgment

Legal Issues

  1. 1 Whether the plaintiff should forfeit her right to share in the accrual of the defendant's estate, wholly or partially.
  2. 2 What caused the irretrievable breakdown of the marriage.
  3. 3 Whether the plaintiff contributed to the accrual in the defendant's estate.

Ratio Decidendi

The court found that the plaintiff contributed to the accrual in the defendant's estate, albeit to a lesser extent. The marriage irretrievably broke down primarily due to the plaintiff's extramarital relationship and her confession to the defendant. Both parties had previously engaged in extramarital affairs, but the plaintiff's recent conduct was the decisive factor. The court held that the plaintiff should forfeit 80% of the patrimonial benefits in the accrual of the defendant's estate, specifically regarding the house and pension interest. The plaintiff is entitled to 20% of the accrual in the house and pension interest, with payment of the pension interest deferred until the...

Court Disposition

Divorce granted; plaintiff forfeits 80% of patrimonial benefits in defendant's estate (house and pension interest); child custody and maintenance orders made; each party to pay own costs.

Orders

  • A decree of divorce is granted.
  • Primary care of the minor daughter, Li-Che, is awarded to the plaintiff; both parties retain parental rights and responsibilities under section 18 of the Children's Act.