Clive Thomas Buttner v Cheryl Ann Buttner

The parties married on 2 July 1977 out of community of property in terms of an antenuptial contract, excluding community of property, profit and loss, and accrual. The marriage lasted approximately 27 years. The appellant husband instituted divorce proceedings in April 2003. During the marriage, the appellant was the primary breadwinner, working as a quantity surveyor and later in the building industry. The respondent wife initially worked but stopped to care for their two daughters, born in 1983 and 1987. Both parties testified that throughout the marriage they pooled their income and regarded assets as jointly owned. The family emigrated from South Africa to New Zealand in 1998, then to Australia in 2000. When the appellant sold his member's interest in T&B Log Homes in 1997, part of the consideration included member's interests in two close corporations - WN 20 CC was transferred to the respondent, WN 21 CC to the appellant. The parties purchased a house in Brisbane, Australia, registered in joint names. Following marital breakdown (partly due to the respondent's adultery in July 2002 and the daughter Kate's behavioral problems), the Brisbane house was sold in November 2002 for approximately A$590,000. The appellant unilaterally transferred A$215,000 from the net proceeds to his own account without the respondent's knowledge. The respondent obtained an order in the Australian Family Court to freeze these funds. The appellant then transferred the remaining A$157,900 to an account held by a business associate. The respondent sold her member's interest in WN 20 CC for net proceeds of approximately R284,000.

• Whether the trial court correctly exercised its discretion in granting a redistribution order under section 7(3) of the Divorce Act 70 of 1979
• Whether the trial court misdirected itself in considering the requirements of section 7(3) and 7(4) of the Divorce Act
• What constitutes a sufficient contribution by a spouse to the maintenance or increase of the other spouse's estate for purposes of section 7(3) and (4)
• What are the appropriate grounds for an appellate court to interfere with a trial court's exercise of discretion under section 7(3)
• Whether a 'globular approach' to claim and counterclaim is appropriate in redistribution cases
• Whether the trial court correctly awarded token maintenance under section 7(2) of the Divorce Act
• The relevance of marital misconduct (adultery) in determining redistribution and maintenance orders
• Whether security for costs should be granted at a late stage of appellate proceedings

The appeal was upheld in part. The order was substituted to require the appellant to pay the respondent R218,000 (reduced from R360,000) with interest at 15.5% per annum from date of order to payment. The token maintenance order of R10 per month until the respondent's death or remarriage was upheld. The respondent's application for security for costs was dismissed with costs. No order was made as to costs of the appeal itself. The costs order in favor of the respondent in the trial court was upheld.

When exercising discretion under section 7(3) of the Divorce Act, a court must determine whether the spouse claiming redistribution made the requisite contribution to the other spouse's estate as contemplated in section 7(4), not whether the respondent failed to contribute to their own assets. Where parties throughout a long marriage consciously pooled income and regarded assets as jointly owned, fairness demands that effect be given on divorce to the principle of equal sharing which the parties applied during their married life. Indirect contributions through homemaking and child-rearing constitute valuable contributions to the maintenance or increase of the other spouse's estate for purposes of section 7(3) and (4). A 'globular approach' to claim and counterclaim is appropriate where the facts relevant to both are closely interrelated. Marital misconduct should only influence redistribution and maintenance orders where it would be inequitable or unjust to disregard it; where both parties contributed to marital breakdown with no conspicuous disparity in conduct, misconduct should not be determinative. Token maintenance may be awarded where justified by the factors in section 7(2), particularly where one spouse's limited earning capacity results from years devoted to homemaking during the marriage, even if the paying spouse currently has limited means but reasonable prospects of future employment.

The Court noted but did not decide the question of whether discretion under section 7(3) should be categorized as 'discretion in the narrow sense' (limiting appellate interference) or 'discretion in the broad sense' (allowing substitution of the appeal court's discretion on the merits), finding it unnecessary to decide given the misdirection identified. Van Heerden JA expressed the view that the approach in Kritzinger v Kritzinger requiring separate consideration of claim and counterclaim 'seems to me to be rather too inflexible and may have to be reconsidered in the future' given the court's mandate to effect justice between the parties. The Court commented that when a mother dies and the respondent inherits assets currently subject to a life usufruct, this will improve her financial position, but did not make this determinative of the maintenance order. The judgment noted that token maintenance orders can be rescinded, suspended or varied by a competent court on application of either party should circumstances change.

This case is significant for clarifying the proper approach to section 7(3) and (4) of the Divorce Act regarding redistribution of assets in marriages out of community of property. It emphasizes that courts must focus on whether the claimant contributed to the other spouse's estate, not on the absence of contribution by the respondent. The judgment is important for recognizing indirect contributions (homemaking, child-rearing) as valuable contributions justifying redistribution. It affirms that where parties consciously adopted equal sharing throughout marriage, courts should give effect to this on divorce. The case also clarifies when appellate courts may interfere with discretionary orders, the appropriateness of a 'globular approach' when facts of claim and counterclaim are interrelated, and the proper exercise of discretion in awarding token maintenance. It provides guidance on the relevance of marital misconduct in redistribution and maintenance decisions, adopting a conservative approach that misconduct should only influence outcomes where disregarding it would be unjust.