Surviving spouse claiming redistribution in terms of Section 7(3) of the Divorce Act 71 of 1979 and also after "Litis contestatio" - Gunter v Executor in the Estate of the Late Christian France Gunter (20342/2008) [2012] ZAWCHC 51 (6 June 2012)
This exact question came up in the case of Gunter v Executor in the Estate of the Late Christian France Gunter (20342/2008) [2012] ZAWCHC 51 (6 June 2012). The parties had married each other in 1969 in Cape Town out of community of property. After a lengthy marriage, in 2008 the Plaintiff (the woman) instituted a divorce action against the Defendant (the man). One of the main prayers that she was seeking was redistribution in terms of Section 7(3) of the Divorce Act 71 of 1979 and a claim for personal maintenance in terms of Section 7(2) of this Act.
The Defendant in turn in his counterclaim also sought for redistribution and personal maintenance against the Plaintiff. The Defendant died in 2010. The Plaintiff now by way of an amendment to the pleadings in the divorce action proceeded with a claim of redistribution against the Executor of the Defendant’s estate. The Plaintiff also brought a separate claim against the estate in terms of the Maintenance of Surviving Spouses Act 27 of 1990. In our law the term “litis contestatio” often gets used. A matter is only ripe for trial after the pleadings have been closed. “Litis contestatio" basically means closing of the pleadings.
The Plaintiff’s case was that the Defendant passed away after litis contestatio had been reached, and that her claim was therefore not extinguished by the death of her husband. She also relied on Rule 15 of the Uniform Rules of Court which states that no proceedings will terminate solely by the reason of the death, marriage or change of status of any party thereto, unless the cause of such proceedings is thereby extinguished.
The Court was of the view that a marriage dissolves on the death of one of the parties, and that the Plaintiff’s claim for divorce was extinguished on the death of her husband. The Executor had argued that the Plaintiff’s claim for redistribution had become unenforceable as a result of the death of the Defendant.
The Court in coming to its conclusion looked at the decision in Schutte vs Schutte 1996 (1) SA 872 and Sempapalele vs Sempapalele 2001 (2) SA 306 (O). In the Schutte case the Court decided that an order cannot be granted in terms of Section 7 of the Act after the dissolution of the marriage. This position was supported by the decision in the Sempapalele case, which dealt with a pension interest.
The Court in the Gunter case was of the view that a divorce is a personal action and comes automatically to an end if one of the spouses dies before a Divorce Order is granted. Similarly, the claim for redistribution is a personal right between the parties which only a court granting an order of divorce has a discretion to entertain.
The Plaintiff’s claim for redistribution was found by the Court to have been extinguished by the death of the deceased. The Plaintiff did not have a claim against the Executor, and was ordered to pay the costs of the application. The Court was of the view that irrespective of whether litis contestatio had taken place or not, a party to a divorce action cannot pursue a claim for ancillary relief where the marriage is already dissolved.
Marriage in community of property
Signing of pleadings and summons