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2024
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[2024] ZAGPJHC 873
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E.T v S.T (2024/066890) [2024] ZAGPJHC 873 (16 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
1.
REPORTABLE: NO
2.
OF INTEREST TO OTHER JUDGES: NO
3.
REVISED.
16
September 2024
Case
No.
2024-066890
In
the matter between:
EST
Plaintiff
And
HT
Defendant
JUDGMENT
WILSON
J:
1
The plaintiff, EST, sued the defendant, HT, for divorce. The
parties entered into a settlement agreement, which was placed before
me in my unopposed divorce court on 30 August 2024. Ms. Gordon, who
appeared for the Plaintiff, asked me to grant a decree of divorce,
incorporating the settlement agreement.
2
On the papers placed before me, it appeared that EST and HT
had been married in community of property since 4 January 1968. EST
is 78 years old. HT is 81 years old. EST said that the parties wished
to divorce because they had lost love and affection for one
another;
that there was no longer any meaningful communication between them;
and that they no longer shared any common interests.
3
After 56 years of marriage, that summary of affairs seemed a
little terse. In addition, the settlement agreement placed before me
appeared to assign almost all of the marital estate to EST. Ownership
of the marital home was to be given solely to EST. HT was
obliged to
make a further payment of R4.1 million to EST. HT was also required
to move out of the house within 48 hours of my approval
of the
agreement, taking only a small Suzuki hatchback with them.
4
It is neither competent nor proper to make a settlement
agreement an order of court unless the Judge who has been asked to
endorse
the agreement has been satisfied that the agreement is
concluded freely and voluntarily in the full knowledge of the
respective
parties’ rights. The apparent inequity in the
disposition of EST’s and HT’s marital estate raised the
real possibility
that the settlement agreement had not been freely
struck in this sense.
5
I adjourned the action for divorce with a direction that the
parties place before me additional material which dealt with the
breakdown
of the marriage relationship and the division of the
marital estate, and which tended to show that the agreement was
freely concluded.
6
That material was produced on 13 September 2024. HT explained
in an additional affidavit that, while they had lived together until
the end of August 2024, the parties had not shared a bedroom for 15
years. They now lead separate lives. They no longer have any
intimacy
or affection for one another, and no longer communicate on any
matters of substance. In short, EST’s and HT’s
marriage
has irretrievably broken down, and they wish it to end.
7
In addition, HT revealed that the marital estate was much
bigger than the settlement agreement suggests. The R4.1 million
payment
to be made to EST, together with the marital home, in fact
represents half the true value of the marital estate, the other half
of which HT would retain for themselves. HT submitted supplementary
documentation confirming the value of the estate, and that
the
parties had signed the original settlement agreement voluntarily.
8
The role of a Judge in considering whether to grant an
uncontested divorce in which the parties have settled their affairs
between
themselves is obviously limited. Where there are no minor
children involved, the substantive requirements for granting such a
divorce
will seldom be more onerous than compliance with
section 4
of
the
Divorce Act 70 of 1979
and the production of material sufficient
to satisfy the presiding Judge that the settlement agreement was
freely and voluntarily
concluded in the full knowledge of the
parties’ rights.
9
Where the marriage involved is one in community of property,
the voluntariness of an otherwise properly executed agreement can
usually
be inferred from an even or close to even division of the
marital estate. Accordingly, consensual petitions for divorce ought,
in appropriate circumstances, to deal with the division of the
marital estate more thoroughly than EST and HT initially did. Where
there is an apparent disparity in the division of a marital estate
formed in community of property, it should be explained.
10
In eschewing that approach, Ms. Gordon originally contended
that I need not worry about the apparent inequity in the division of
EST’s and HT’s marital estate. She submitted that the
parties may agree to whatever terms they choose, and that a court
ought to respect the parties’ autonomy to do so.
11
That submission was pressed too far. Where the division of the
estate itself suggests such a disparity as to call into question
whether it was really agreed to, “whatever the parties choose”
might, legally speaking, be no true choice at all.
12
In any event, the additional material the parties supplied
demonstrated that the estate is much larger than was disclosed in the
papers initially submitted. HT’s additional affidavit reassured
me that the parties had in fact agreed to an even division
of the
marital estate.
13
That
was sufficient to dispel my concern that the settlement agreement was
not freely struck. I shall accordingly grant a decree
of divorce
incorporating the settlement agreement, including its two addenda.
That decree will be uploaded to this court’s
electronic
registry forthwith.
S
D J WILSON
Judge
of the High Court
This
judgment is handed down electronically by circulation to the parties
or their legal representatives by email, by uploading
it to the
electronic file of this matter on Caselines, and by publication of
the judgment to the South African Legal Information
Institute. The
date for hand-down is deemed to be 16 September 2024.
HEARD
ON:
30
August 2024
ADDITIONAL
EVIDENCE
RECEIVED
ON:
13
September 2024
DECIDED
ON:
16
September 2024
For
the Plaintiff:
C
Gordon
Malherbe
Rigg and Ranwell