R.B.M v M.S.M (CA 29/2022) [2023] ZAECMKHC 18 (24 February 2023)

R.B.M v M.S.M (CA 29/2022) [2023] ZAECMKHC 18 (24 February 2023)

The appellant failed to prove the nature and extent of any benefit that the respondent would receive upon dissolution of the marriage, as required by section 9(1) of the Divorce Act. The evidence regarding the value of the motor vehicle, immovable property, and pension interest was speculative or insufficient. The appellant conceded that the joint estate should be divided equally up to June 2015, and no reliable evidence was presented regarding the value of assets or appreciation post-2015. The factors of duration of marriage, circumstances of breakdown, and substantial misconduct were considered. The marriage was of significant duration (22–28 years), militating against forfeiture. The...

Citation
[2023] ZAECMKHC 18
Parties
Appellant: R.B.M; Respondent: M.S.M
Court
Eastern Cape High Court, Makhanda
Jurisdiction
South Africa
Judgment Date
24 February 2023
Case Number
CA 29/2022
Procedural Posture
Civil Appeal / Appeal From Regional Court Divorce Order; Judgment on Appeal
Outcome
Appeal dismissed; costs awarded against appellant.
Judges
Bands, Hartle
Legal Topics
Divorce Act Section 9 Forfeiture, Division of Joint Estate, Substantial Misconduct, Duration of Marriage, Matrimonial Property Regime
Family and Children Divorce Act Section 9 Forfeiture Division of Joint Estate Substantial Misconduct Duration of Marriage Matrimonial Property Regime

Case Brief

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Parties

R.B.M

Appellant

M.S.M

Respondent

Procedural Posture

Civil Appeal / Appeal From Regional Court Divorce Order; Judgment on Appeal

Legal Issues

  1. 1 Whether the respondent should forfeit patrimonial benefits of the marriage under section 9(1) of the Divorce Act.
  2. 2 Whether the trial court misdirected itself in refusing forfeiture.
  3. 3 Whether the respondent would be unduly benefited if forfeiture is not ordered.

Ratio Decidendi

The appellant failed to prove the nature and extent of any benefit that the respondent would receive upon dissolution of the marriage, as required by section 9(1) of the Divorce Act. The evidence regarding the value of the motor vehicle, immovable property, and pension interest was speculative or insufficient. The appellant conceded that the joint estate should be divided equally up to June 2015, and no reliable evidence was presented regarding the value of assets or appreciation post-2015. The factors of duration of marriage, circumstances of breakdown, and substantial misconduct were considered. The marriage was of significant duration (22–28 years), militating against forfeiture. The...

Court Disposition

Appeal dismissed; costs awarded against appellant.

Orders

  • The appeal is dismissed.
  • The appellant is ordered to pay the respondent's costs.