L v L (26758/2014) [2017] ZAGPPHC 895 (7 December 2017)

L v L (26758/2014) [2017] ZAGPPHC 895 (7 December 2017)

The court found that the proposed amendment to include a claim for adjustment on division of the joint estate was not supported by the Matrimonial Property Act, as the pleaded basis was a purported damages or enrichment claim, which cannot be sustained prior to divorce between parties married in community of property. The court held that the objections to the amendment were sound, as no valid claim for enrichment or damages exists in these circumstances, and no maintenance claim was pleaded. Allowing the amendment would render the particulars of claim excipiable. Accordingly, the application for amendment was dismissed, except for those amendments not objected to, which were granted by...

Citation
[2017] ZAGPPHC 895
Parties
Applicant: L, L; Respondent: L, B
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 December 2017
Case Number
26758/2014
Procedural Posture
Civil Application / Application for Amendment of Particulars of Claim in Divorce Proceedings
Outcome
Application for amendment dismissed with costs, except for unopposed amendments which were granted by consent.
Judges
DP de Villiers
Legal Topics
Amendment of Pleadings, Divorce Proceedings, Matrimonial Property Act, Enrichment Claims, Damages Claims
Family and Children Civil Procedure Amendment of Pleadings Divorce Proceedings Matrimonial Property Act Enrichment Claims Damages Claims

Case Brief

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Parties

L, L

Applicant

L, B

Respondent

Procedural Posture

Civil Application / Application for Amendment of Particulars of Claim in Divorce Proceedings

Legal Issues

  1. 1 Whether the applicant may amend the particulars of claim to include a claim for adjustment on division of the joint estate in the absence of a specified amount.
  2. 2 Whether the proposed amendment introduces a valid enrichment or damages claim prior to divorce between parties married in community of property.
  3. 3 Whether the proposed amendment would render the particulars of claim excipiable.

Ratio Decidendi

The court found that the proposed amendment to include a claim for adjustment on division of the joint estate was not supported by the Matrimonial Property Act, as the pleaded basis was a purported damages or enrichment claim, which cannot be sustained prior to divorce between parties married in community of property. The court held that the objections to the amendment were sound, as no valid claim for enrichment or damages exists in these circumstances, and no maintenance claim was pleaded. Allowing the amendment would render the particulars of claim excipiable. Accordingly, the application for amendment was dismissed, except for those amendments not objected to, which were granted by...

Court Disposition

Application for amendment dismissed with costs, except for unopposed amendments which were granted by consent.

Orders

  • The application is dismissed with costs.
  • The applicant is authorised to amend its particulars of claim as set out in paragraphs 1, 3, 4, and 5 of its notice of proposed amendments to the particulars of claim dated 22 March 2016 within fifteen days from date of this order.