Gunter v Executor in the Estate of the Late Chrisitian France Gunter (20342/2008) [2012] ZAWCHC 51; 2013 (4) SA 387 (WCC) (6 June 2012)

Gunter v Executor in the Estate of the Late Chrisitian France Gunter (20342/2008) [2012] ZAWCHC 51; 2013 (4) SA 387 (WCC) (6 June 2012)

The court held that the relief provided for in Section 7 of the Divorce Act is strictly ancillary to a decree of divorce and cannot be granted where the marriage has already been dissolved by death. The cause of action for divorce and its ancillary relief is extinguished upon the death of a spouse, regardless of whether litis contestatio has been reached. The redistribution order is a personal right between spouses and does not survive the dissolution of marriage by death. The authorities cited by the plaintiff regarding transmissibility of claims after litis contestatio were found irrelevant to family law claims, which are personal and die with the parties. Accordingly, the plaintiff's...

Citation
[2012] ZAWCHC 51
Parties
Plaintiff: Yvonne Lynette Gunter; Defendant: Executor in the Estate of the Late Christian France Gunter
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
6 June 2012
Case Number
20342/2008
Procedural Posture
Civil Judgment / Final Judgment
Outcome
Plaintiff's claim for redistribution under Section 7(3) of the Divorce Act was extinguished by the death of her husband prior to final determination of the divorce action; no claim lies against the executor of the estate.
Judges
Gangen
Legal Topics
Divorce Act Section 7, Redistribution Order, Ancillary Relief, Litis Contestatio, Maintenance of Surviving Spouses, Personal Rights in Family Law
Family and Children Divorce Act Section 7 Redistribution Order Ancillary Relief Litis Contestatio Maintenance of Surviving Spouses Personal Rights in Family Law

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Parties

Yvonne Lynette Gunter

Plaintiff

Executor in the Estate of the Late Christian France Gunter

Defendant

Procedural Posture

Civil Judgment / Final Judgment

Legal Issues

  1. 1 Whether the plaintiff's claim for redistribution in terms of Section 7(3) of the Divorce Act was extinguished by the death of her husband prior to final determination of the divorce action.
  2. 2 Whether the plaintiff has a claim for redistribution in terms of Section 7(3) against the executor of the deceased's estate.
  3. 3 Whether ancillary relief under Section 7 of the Divorce Act can be granted where the marriage is dissolved by death before a divorce order is granted.

Ratio Decidendi

The court held that the relief provided for in Section 7 of the Divorce Act is strictly ancillary to a decree of divorce and cannot be granted where the marriage has already been dissolved by death. The cause of action for divorce and its ancillary relief is extinguished upon the death of a spouse, regardless of whether litis contestatio has been reached. The redistribution order is a personal right between spouses and does not survive the dissolution of marriage by death. The authorities cited by the plaintiff regarding transmissibility of claims after litis contestatio were found irrelevant to family law claims, which are personal and die with the parties. Accordingly, the plaintiff's...

Court Disposition

Plaintiff's claim for redistribution under Section 7(3) of the Divorce Act was extinguished by the death of her husband prior to final determination of the divorce action; no claim lies against the executor of the estate.

Orders

  • Plaintiff's claim for redistribution in terms of Section 7(3) of the Divorce Act 71 of 1979 was extinguished by the death of her husband prior to the final determination of the pending divorce action.
  • Plaintiff does not have a claim for redistribution in terms of Section 7(3) of the Divorce Act 71 of 1979 against the executor of the estate of the deceased.