Application in terms of Rule 33(4) of the Uniform Rules of Court to settle the divorce first and then finalising maintenance and redistribution of patrimonial assets later - CC v MVC [2013] 4 A11 SA327 (GSJ)
The parties were married with an antenuptial contract excluding accrual (“what’s yours is yours and what’s mine is mine”). The parties had in fact got married before 1984 when the accrual system became an option.
The man had sued his wife for divorce. The wife, however, averred that the marriage had not broken down irretrievably. The wife, on her papers, averred that if the court did find that the marriage had broken down irretrievably, the reason for this was her husband’s extra-marital affair. She sought maintenance and a redistribution of patrimonial assets in terms of section 7(2) and (3) of the Act, in her papers.
The court had the problem of determining the size of the applicant’s/ (man’s) estate in this case as he had made donations of cash and shares to his sons and now wanted to have them set aside due to the trouble that the sons were causing him. The application to set aside the donations was expected to take years and there was also the risk of an appeal against any decision. The man now applied for separation of the issue of the granting of a divorce decree from the maintenance and distribution of patrimonial assets. His wife opposed the application. Her argument was that the issues were inextricably linked and should therefore not be decided separately.
I have been involved in many cases like this where one party argues that the divorce should go through in the meantime and that any other issue which cannot be sorted out can be sorted out after the divorce. The courts do not always like doing this, as it could lead to litigation after the divorce if too many issues are left “hanging in the air”.
The man in the CC v MVC case had launched the application in terms of Rule 33(4) of the Uniform Rules of Court. This rule provides that if in any pending action it appears to the court that there is a question of law or fact that may conveniently be decided either before any evidence is led or separately from any other question, the court may make an order directing the disposal of such question in such manner as it may deem fit and may order that all further proceedings be stayed until such question has been disposed of and the court shall, on application by any party, make such order unless it appears that the question cannot conveniently be decided separately.
The court ordered separation of the issues as sought by the applicant, the costs being costs in the cause. I agree with the decision of the court. The court was in favour of granting separation as it was inappropriate for party to an irretrievably broken down marriage to oppose the separation of issues in a divorce action for advantage to secure a more favourable 7(3) patrimonial distribution award, or to use the perpetuation of what appeared to be irretrievably broken down marriage as leverage for tactful reason to pre-empt the dissolution of such marriage extension after both of the parties want the divorce but cannot sort out certain points of dispute. The above case shows that courts these days are allowing the separation of issue in a divorce.
article written by Cape Town divorce attorney, Peter M Baker
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