An elderly and sickly husband learnt the hard way when he wanted to revoke the “donation” of his half of the matrimonial home to his now estranged wife, based on the grounds of “ingratitude” on her part, as he claimed she subsequently assaulted him and had an affair.
The husband, who claimed he had donated his portion of their home to his wife out of the goodness of his heart, now had a change of heart due to his wife’s conduct, the Gauteng High Court, Johannesburg, was told.
But the court ruled: a promise is a promise.
The wife turned to court to obtain an order for the husband to sign the documents pertaining to the transfer of his portion to her and for the Pretoria Registrar of Deeds to transfer the property into her name.
The couple are still married, but divorce proceedings are pending.
The husband left the matrimonial home in August 2017, and the parties have not lived together since. Two months after he had moved out, the wife instituted divorce proceedings against him, which are still pending.
When he left the house in 2017, the husband donated his half share of the immovable property to the wife in terms of a written deed of donation. When he failed to take the necessary steps to effect registration of transfer into the name of the wife, the current application was launched in 2018.
The legal issue had been dragging on, but the now fed-up wife now wants an order forcing the husband to sign the papers. If he refused, she said, the court should authorise and direct the sheriff to “take all steps necessary” to see that the papers are signed.
Acting Judge Van Eden commented that the reason for the donation does not appear from the founding affidavit of the husband or the deed of donation. But in his replying affidavit, he stated that in making the donation, he was “acting out of pure liberality”.
“I thus accept that the donation was a pure donation,” the judge said.
The husband opposed this application on the basis that he had revoked the donation. He argued he was entitled to revoke the donation based on “gross ingratitude” by the wife. He said she had assaulted him after the deed of donation had been signed, and he also claimed infidelity on her part.
The judge said assuming the correctness of his allegations that the wife had assaulted him, it appears that these complaints date back to 2009. In his court papers, he stated the wife “has a bad and erratic temper and started assaulting him in 2009”. He also gave a description of the alleged first assault in 2009, together with various further alleged incidents of assault.
But the judge said these assaults preceded the donation. “If the assaults preceding the donation were not of such a nature as to prevent the donation, assaults post the donation can hardly be relied upon to demonstrate gross ingratitude,” the judge said.
Judge Van Eeden added: “The claim of infidelity relates to the period after the husband had left the matrimonial home and can also not be relied upon to establish gross ingratitude.”
It also appeared from correspondence between the estranged couple’s attorneys that the husband “has unconditionally agreed to sign over his 50% share of the house”.
It also emerged that the husband (before his change of heart on his donation) felt he did not need to pay maintenance to the wife pending their divorce. “It appears to me that it was an afterthought by the first respondent to escape the consequences of the donation and then the subsequent settlement. His intention had always been that the donation was out of pure liberality and not to satisfy his obligations towards the applicant.
“Thus, even if the assaults post the donation and the infidelity complained of constituted sufficient grounds to establish gross ingratitude, they were forgiven during the (divorce) negotiations during 2022, just as the earlier assaults were forgiven at the time of the donation,” the judge said.
The court found that, on the premise the husband failed to prove an entitlement to claim revocation of a pure donation based on gross ingratitude, and the wife’s application should succeed. Thus, the husband has to sign the papers so that the house can belong to his wife.