Smallberger v Stols (1112/2012) [2012] ZAECPEHC 80 (13 November 2012)

Smallberger v Stols (1112/2012) [2012] ZAECPEHC 80 (13 November 2012)

The court held that the defendant's counterclaim alleging a universal partnership between spouses married out of community of property with exclusion of the accrual system lacks the necessary averments to sustain the claim. The alleged partnership would contradict the express terms of the antenuptial contract, which keeps the parties' estates separate and excludes accrual sharing. The court found that the contributions described by the defendant are those ordinarily expected in a marriage and do not establish a commercial enterprise or a partnership distinct from the matrimonial regime. Evidence supporting such a partnership would be inadmissible as it would amount to an invalid amendment...

Citation
[2012] ZAECPEHC 80
Parties
Plaintiff: Rene᷇ Smalberger; Defendant: Gabriel Jacobus Stols
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
13 November 2012
Case Number
1112/2012
Procedural Posture
Civil Procedure / Exception to Counterclaim in Divorce Proceedings
Outcome
Exception upheld; paragraphs 9, 10, 11, 12 and 13 of the defendant's counterclaim struck out; costs awarded to plaintiff.
Judges
J M Roberson
Legal Topics
Universal Partnership, Antenuptial Contract, Exception Procedure, Division of Assets, Irretrievable Breakdown, Maintenance of Minor Child
Family and Children Civil Procedure Universal Partnership Antenuptial Contract Exception Procedure Division of Assets Irretrievable Breakdown Maintenance of Minor Child

Case Brief

Summary, issues, holding and outcome

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Parties

Rene᷇ Smalberger

Plaintiff

Gabriel Jacobus Stols

Defendant

Procedural Posture

Civil Procedure / Exception to Counterclaim in Divorce Proceedings

Legal Issues

  1. 1 Whether the defendant's counterclaim alleging a universal partnership between spouses married out of community of property with exclusion of accrual system contains the necessary averments to sustain the claim.
  2. 2 Whether evidence supporting the existence of a universal partnership would be inadmissible as it contradicts the antenuptial contract.
  3. 3 Whether a universal partnership can co-exist with the chosen matrimonial property regime.

Ratio Decidendi

The court held that the defendant's counterclaim alleging a universal partnership between spouses married out of community of property with exclusion of the accrual system lacks the necessary averments to sustain the claim. The alleged partnership would contradict the express terms of the antenuptial contract, which keeps the parties' estates separate and excludes accrual sharing. The court found that the contributions described by the defendant are those ordinarily expected in a marriage and do not establish a commercial enterprise or a partnership distinct from the matrimonial regime. Evidence supporting such a partnership would be inadmissible as it would amount to an invalid amendment...

Court Disposition

Exception upheld; paragraphs 9, 10, 11, 12 and 13 of the defendant's counterclaim struck out; costs awarded to plaintiff.

Orders

  • The exception is upheld.
  • Paragraphs 9, 10, 11, 12 and 13 of the defendant's counterclaim are struck out.