H.P.V.N v M.V.N (68955/18) [2021] ZAGPPHC 121 (12 February 2021)

H.P.V.N v M.V.N (68955/18) [2021] ZAGPPHC 121 (12 February 2021)

The court held that the plaintiff failed to plead compliance with section 21(1) of the Matrimonial Property Act, which is required to change the marital property regime. The agreement in annexure 'B' purported to alter the consequences of divorce contrary to the registered ante-nuptial contract, but no application for leave of court was made. Furthermore, annexure 'B' did not describe the immovable property claimed, resulting in non-compliance with the Alienation of Land Act. The court found that these omissions were fatal to the plaintiff's cause of action and upheld the exception. The third ground of exception, relating to public policy, could not be determined without oral evidence and...

Citation
[2021] ZAGPPHC 121
Parties
Defendant: V N[...]: H P; Plaintiff: V N[...]: M
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
12 February 2021
Case Number
68955/18
Procedural Posture
Exception Application / Exception to Particulars of Claim in Divorce Proceedings
Outcome
Exception upheld with costs; plaintiff granted leave to amend particulars of claim.
Judges
Collis
Legal Topics
Matrimonial Property Regime, Exception to Pleadings, Alienation of Land Act, Change of Marital Property System, Public Policy Contracts
Family and Children Civil Procedure Matrimonial Property Regime Exception to Pleadings Alienation of Land Act Change of Marital Property System Public Policy Contracts

Case Brief

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Parties

V N[...]: H P

Defendant

V N[...]: M

Plaintiff

Procedural Posture

Exception Application / Exception to Particulars of Claim in Divorce Proceedings

Legal Issues

  1. 1 Whether the plaintiff's particulars of claim disclose a cause of action for the relief sought in prayer 2.
  2. 2 Whether the agreement in annexure 'B' is valid and enforceable without leave of court under section 21 of the Matrimonial Property Act.
  3. 3 Whether the agreement in annexure 'B' complies with the Alienation of Land Act.

Ratio Decidendi

The court held that the plaintiff failed to plead compliance with section 21(1) of the Matrimonial Property Act, which is required to change the marital property regime. The agreement in annexure 'B' purported to alter the consequences of divorce contrary to the registered ante-nuptial contract, but no application for leave of court was made. Furthermore, annexure 'B' did not describe the immovable property claimed, resulting in non-compliance with the Alienation of Land Act. The court found that these omissions were fatal to the plaintiff's cause of action and upheld the exception. The third ground of exception, relating to public policy, could not be determined without oral evidence and...

Court Disposition

Exception upheld with costs; plaintiff granted leave to amend particulars of claim.

Orders

  • The exception is upheld with costs.
  • The plaintiff is granted leave to amend her particulars of claim within 15 court days of the date of this order.