MS (nee R) v JS (GP) (unreported case no 32041/2022, 29-10-2024) (Amien AJ)

In the case of MS (nee R) v JS, the applicant/defendant sought an order that the postnuptial agreement is invalid and not binding, followed by a rectification of the matrimonial property regime to include accrual, alternatively a redistribution of assets, alternatively further that their matrimonial property regime is governed by a universal partnership. The Gauteng Division of the High Court in Pretoria stated that this was an application in terms of the r 33(4) of the Uniform Rules of Court, to separate an issue pertaining to the nature of the matrimonial property regime in a pending divorce action between parties.

The High Court said that r 33(4) provides:

‘If, in any pending action, it appears to the court mero motu that there is a question of law or fact which 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 the application of any party make such order unless it appears that the questions cannot conveniently be decided separately.’

The High Court said that from the above, it is clear that r 33(4) applies to the separation of issues pertaining to law and/or fact when it is convenient for all concerned and when it serves the interests of justice to do so. The High Court added that substantial grounds should exist for the application of
r 33(4). The High Court said that the applicant/defendant and the respondent/plaintiff who are both pensioners were married to each other on 27 March 1982. The respondent/plaintiff instituted divorce proceedings against the applicant/defendant.

The High Court pointed out that the applicant/defendant wanted the issue of the matrimonial property regime between the parties to be decided independently of the main action for divorce in terms of r 33(4). The High Court said that at the time of entering the marriage, the parties concluded an antenuptial contract, which rendered their marriage out of community of property. The High Court added that this was prior to the enactment of the Matrimonial Property Act 88 of 1984, so accrual did not apply.

The High Court said that it appears from the respondent/plaintiff’s particulars of claim annexed to the combined summons in the divorce action that during 1992, and in accordance with s 21 of the Matrimonial Property Act, the parties were authorised by an order of court to change their matrimonial property regime out of community of property excluding the accrual system. The High Court pointed out that this resulted in the parties signing a postnuptial agreement, which was duly notarised and registered at the Deeds Office, in which the parties’ matrimonial property regime was rendered out of community of property without the accrual system. The High Court added that the parties subsequently concluded a postnuptial agreement on 30 July 1992 that rendered their marriage out of community of property excluding the accrual system.

The applicant/defendant averred that the reference to the exclusion of the accrual system on the front page of the postnuptial agreement was either done in error or was added without her. She contended that it was never her intention to enter a matrimonial property regime that was out of community of property without accrual, and that the question regarding the clarification of the parties’ intention when they entered the postnuptial agreement should be referred for oral evidence before commencement of the divorce trial. The High Court pointed out that the applicant/defendant said that separating the issues will not take much time and preparation, and the number of witnesses required will be limited. The High Court added that the applicant/defendant further stated that she was of the view that pending the divorce trial, the respondent/plaintiff could alienate assets, which would be prejudicial to her. The High Court said that through an interlocutory application, the applicant/defendant was seeking an order that the postnuptial agreement was invalid and not binding, followed by a rectification of the matrimonial property regime to include accrual, alternatively a redistribution of assets, alternatively further that their matrimonial property regime is governed by a universal partnership.

The High Court pointed out that the respondent/plaintiff argued that the parties’ intention is simply one factor that a court would consider, to decide which matrimonial property regime governs their marriage. The respondent/plaintiff averred that there was no ambiguity regarding the wording of the postnuptial agreement. The High Court pointed out that the respondent/plaintiff asserted that a finding on the intention of the parties in concluding the postnuptial contract would not dispose of the matter because a full trial would be required to determine all legal issues in the divorce action.

The High Court said that having regard to the respondent/plaintiff combined summons and particulars of claim, and the applicant/defendant’s plea and counterclaim in the main action for divorce, it appeared that the main issue to be determined (apart from a claim for divorce and costs) was the division of the matrimonial estate between the parties. The High Court said that the separation of the issue pertaining to the matrimonial property regime would not materially shorten the divorce trial since it was the main issue to be determined.

The High Court added that the evidence led in the interlocutory application would be intertwined with and would overlap with the issues in the main divorce action. The High Court added that consequently, separating the issue from the issue from the main proceeding would only serve to delay the proceeding, regardless if the applicant/plaintiff case was strong or not. The court added that the case could likely go either way.

The High Court said that with regard to the prejudice that would be suffered by the parties, it was mentioned previously that the applicant/plaintiff was of a view that the respondent/defendant could alienate assets and transfer monies and/or investments without her knowledge. The High Court pointed out that balancing out all the above interests at play, substantial grounds did not appear to exist for an application of r 33(4). The High Court added that it would not be convenient for all concerned and would not serve the interests of justice for the issues pertaining to the matrimonial property regime of the parties to be decided in a separate application. The application was dismissed with costs in the cause.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2024 (December) DR 45.