R.V.B v J.V.B [2024] ZAFSHC 378; 2025 (4) SA 297 (FB) (19 November 2024)

R.V.B v J.V.B [2024] ZAFSHC 378; 2025 (4) SA 297 (FB) (19 November 2024)

The court held that the Constitutional Court's order in EB v ER N.O and Others, confirming the invalidity of section 7(3)(a) of the Divorce Act, applies to pending divorce proceedings where the marriage was concluded after 1 November 1984 under an antenuptial contract excluding accrual. Paragraph 5 of the EB order only limits the retrospective effect to exclude cases where divorce or death occurred before 10 October 2023, but does not exclude pending matters. The appellant is therefore entitled to amend her counter-claim to introduce a claim for a redistribution order. The court a quo erred in its interpretation and dismissal of the amendment application. The appeal is upheld, and the...

Citation
[2024] ZAFSHC 378
Parties
Appellant: R.V.B; Respondent: J.V.B
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
19 November 2024
Case Number
A92/2024
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Application to Amend Counter Claim Prior to Trial
Outcome
Appeal upheld; appellant granted leave to amend her counter-claim; costs awarded to appellant.
Judges
Chesiwe, Greyling-Coetzer
Legal Topics
Divorce Act Section 7 3, Redistribution Order, Constitutional Invalidity, Antenuptial Contract, Matrimonial Property Act, Pending Divorce Litigation
Family and Children Divorce Act Section 7 3 Redistribution Order Constitutional Invalidity Antenuptial Contract Matrimonial Property Act Pending Divorce Litigation

Case Brief

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Parties

R.V.B

Appellant

J.V.B

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Application to Amend Counter Claim Prior to Trial

Legal Issues

  1. 1 Whether the appellant is entitled to amend her counter-claim to introduce a claim for a redistribution order under section 7(3) of the Divorce Act.
  2. 2 Whether the Constitutional Court's order in EB v ER N.O and Others applies to pending divorce proceedings where the marriage was concluded after 1 November 1984 under an antenuptial contract excluding accrual.
  3. 3 Whether paragraph 5 of the EB order limits the application of the invalidity declaration to exclude pending matters.

Ratio Decidendi

The court held that the Constitutional Court's order in EB v ER N.O and Others, confirming the invalidity of section 7(3)(a) of the Divorce Act, applies to pending divorce proceedings where the marriage was concluded after 1 November 1984 under an antenuptial contract excluding accrual. Paragraph 5 of the EB order only limits the retrospective effect to exclude cases where divorce or death occurred before 10 October 2023, but does not exclude pending matters. The appellant is therefore entitled to amend her counter-claim to introduce a claim for a redistribution order. The court a quo erred in its interpretation and dismissal of the amendment application. The appeal is upheld, and the...

Court Disposition

Appeal upheld; appellant granted leave to amend her counter-claim; costs awarded to appellant.

Orders

  • The appeal is upheld with costs.
  • The order of the court a quo is set aside and replaced with the following: