Patrimonial benefits and divorce : Botha v Botha 2006(4)SA 144(SCA) : chronicle

• Pages: 101-107
• Published date: 01 January 2006
• Date: 01 January 2006
• Author: H. Lombard
• DOI: 10.10520/EJC51195

H Lombard, Centre for Financial Planning Law, Faculty of Law, University of the

Free State.

Kronieke • Chronicles

H Lombard

Patrimonial benefits and divorce:

Botha v Botha

2006(4)SA 144(SCA)

1. The Facts

The parties were married out of community of property with the marriage

subject to the accrual system.1

The respondent’s father (the defendant) owned two farms, which he

wished to bequeath to his two sons. The defendant, however, had no

intention of farming. As the defendant’s brother was not willing to take out an

insurance policy on his father’s life in order to buy out the defendant when

they inherited the farms, it was decided that the defendant’s father will

bequeath both farms to the defendant’s brother.As compensation for the

loss of the farm which he would have inherited, the defendant took out a life

policy on his father’s life.2

As result of the increasing prices of land, a second policy was taken out

by the defendant on his father’s life. All the premiums of both of the policies

were paid by the defendant.3

When the defendant’s father died in 2001, both policies were paid to the

defendant.4

In July 2003, the appellant (the ‘plaintiff’) instituted a divorce action

against the defendant, claiming a decree of divorce and ancillary relief.The

defendant instituted a counterclaim, claiming partial forfeiture by the plaintiff

of the patrimonial benefits of the marriage, particularly with regard to the

proceeds of the policies.5

1Para 2

2Para 9

3 Para 10

4 Para 11

5Para 3