Spousal Donation of Gifts, Divorce and Gross Ingratitude

by | Nov 4, 2022 | Family Law, Publications

The concept of gross ingratitude derives from Roman Dutch Law and it holds that where a donee of a gift acts with gross ingratitude towards the donor, the donor in question may revoke the donation. The principle was developed Mulligan v Mulligan 1925 W.L.D 178 at 180 where it was accepted that: “the donee may demand the return of the gift on the basis of any act of ingratitude”. In D E and Another v C E and Others (WCC) [19 October 2019], the Western Cape High Court accepted the concept of gross ingratitude as being a ground for revocation of donations, specifically between spouses.  

How does this affect spouses? 

Section 5 of the Matrimonial Property  Act 88 of 1984 excludes donations made to a spouse from the accrual system. This begs the question: What happens if a spouse, married out of community of property (with accrual), successfully donates a gift to the other spouse and the spouses thereafter file for divorce? The short answer is that, at the dissolution of the marriage, the donor spouse would have effectively excluded the gift from the accrual system, for the benefit of the done spouse – this is because donations are generally not revocable.  

When would donations between spouses be revocable?

When a donee spouse has committed an act of gross ingratitude towards the donor spouse at the dissolution of the marriage, the donor may revoke the donation. However, an act of gross ingratitude should be intentional and one of an “actionable wrong or some huge volume of sacrifice or plot against life…” (Fenton v Fenton (Unreported) case:21384/2006 4 May 2006)

Conclusion

While it may be the case that spouses donate gifts to each other, which gifts are then excluded from their matrimonial property, such donation may be revoked if a donee spouse commits an intentional act of gross ingratitude severe enough to offend the donor spouse, such as an act of infidelity which leads to the irretrievable breakdown of the relationship.  

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