Buttner v Buttner

The parties were married in 1977 out of community of property under an antenuptial contract excluding accrual. Throughout their 27-year marriage they pooled their income and regarded assets as joint. The appellant (husband) worked as a quantity surveyor and later built a successful construction business, while the respondent (wife) gave up full-time employment to raise their two children and run the household. The family emigrated first to New Zealand and then to Australia, where they purchased a house in Brisbane in joint names financed by joint funds and the proceeds of the appellant’s sale of a close corporation interest. The marriage broke down under the strain of relocation, work pressures and the respondent’s adultery in 2002. When they decided to return to South Africa in late 2002, the appellant surreptitiously transferred the bulk of the net proceeds of the Brisbane house sale (approximately A$215 000) into an account in his sole name, leaving only A$10 000 in the joint account. In divorce proceedings in the Cape High Court, the appellant sought a s 7(3) redistribution order in respect of the respondent’s member’s interest in Wanderer Night 20 CC. The respondent claimed half the Brisbane house proceeds or, alternatively, a s 7(3) order in her favour, plus maintenance. The trial court dismissed the appellant’s claim, ordered him to pay R360 000 to the respondent, awarded token maintenance of R10 per month, and ordered the appellant to pay costs. The appellant appealed with leave.

• Whether the trial court misdirected itself in exercising its discretion under s 7(3) of the Divorce Act 70 of 1979 when making the proprietary redistribution order.
• What powers an appeal court has to interfere with a trial court’s discretionary order under s 7(3), including whether the discretion is ‘broad’ or ‘narrow’.
• Whether an order for token maintenance under s 7(2) of the Divorce Act was appropriate given the appellant’s unemployment and the respondent’s limited earning capacity.
• To what extent, if any, the respondent’s adultery and alleged gross misconduct should influence the proprietary and maintenance orders.

The appeal was upheld. Paragraph 2 of the trial court’s order was substituted with an order that the appellant pay the respondent R218 000 (instead of R360 000) with interest at 15.5% per annum from the date of the order to the date of payment. The order directing the appellant to pay token maintenance of R10 per month to the respondent until her death or remarriage was upheld. The respondent’s application for security for the costs of the appeal was dismissed with costs. No order was made as to the costs of the appeal itself, leaving the trial court’s costs order in the respondent’s favour undisturbed.

Under s 7(3) read with s 7(4) of the Divorce Act 70 of 1979, the jurisdictional prerequisite for a redistribution order is that the party in whose favour the order is sought contributed directly or indirectly to the maintenance or increase of the estate of the other party; the court may not frame the enquiry by asking whether the spouse holding the asset contributed to its own acquisition. Where a trial court misdirects itself in exercising its discretion under s 7(3), an appeal court is entitled to substitute its own discretion. Matrimonial misconduct is a relevant factor under s 7(3) and s 7(2), but courts must adopt a conservative approach; such misconduct should only influence the order where to disregard it would be unjust or inequitable. Section 7(2) requires a structured assessment of the need for maintenance, by whom and to whom it is to be paid, the amount, and the period; an award of token maintenance is competent if the circumstances of the case render it just in light of the listed factors.

The court expressed the view, without finally deciding the point, that the formalist separatist approach adopted in Kritzinger v Kritzinger 1989 (1) SA 67 (A) — requiring claims and counterclaims to be considered separately — may be too inflexible and might have to be reconsidered in future, noting that a ‘globular’ approach is permissible where the facts are closely interrelated. The court also left open the question of whether the discretion conferred on a trial court by s 7(3) is a discretion in the ‘broad sense’ or the ‘narrow sense’, proceeding on the basis that a misdirection in any event occurred.

The case is significant for clarifying that under s 7(3) of the Divorce Act the court must enquire whether the claimant spouse contributed to the maintenance or increase of the other spouse’s estate, not whether the other spouse contributed to the acquisition of their own asset. It confirms that token maintenance orders are competent under s 7(2) if justified by the statutory factors. It restates the conservative approach to matrimonial misconduct in financial orders: fault should only affect the outcome where it would be inequitable to disregard it. It also illustrates the Supreme Court of Appeal’s power to substitute its own discretion when a trial court has materially misdirected itself in a s 7(3) redistribution matter.