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The possibility of forfeiture of patrimonial benefits is alive and well

Marriages in community of property dictate that the parties to the marriage share a joint and undivided estate consisting of both parties’ respective assets and liabilities including those acquired before the marriage was entered into. It is to this end that marriages in community of property have been best described as “a universal economic partnership of the spouses. All their assets and liabilities are merged in a joint estate, in which both spouses, irrespective of the value of their financial contributions, hold equal shares.


Upon the dissolution of a marriage in community of property, each spouse is entitled to claim 50% (fifty percent) share of the joint estate. However, this right and/or entitlement is not absolute. To this end, a spouse may be entitled to claim forfeiture of patrimonial benefits wherein they essentially request that the Court reduce the 50% entitlement of the other spouse on the basis of their inappropriate conduct during the subsistence of the marriage which ultimately contributed and/or led to its breakdown.


Section 9(1) of the Divorce Act 70 of 1979 (“the Divorce Act”) allows for forfeiture and provides that when a decree of divorce is granted on the ground of the irretrievable breakdown of a marriage, the court may make an order that the patrimonial benefits of the marriage be forfeited, either wholly or in part, by one spouse in favour of the other.


Due to magnitude of the affect that a forfeiture order may have on a spouse’s entitlement to their fifty percent of the joint estate, the court will have due regard to, inter alia, the duration of the marriage, the circumstances which gave rise to the breakdown thereof and any substantial misconduct on the part of either of the spouses. Then, having taken into account all the relevant factors, if the court is satisfied that, if the order for forfeiture is not made, the one spouse will be unduly benefited at the expense of the other, the Court will make an order as to forfeiture.


The courts are therefore vested with a discretion as to whether or not grant a forfeiture order upon granting a decree of divorce. To this end however, each case is unique, and, as evidenced by various case law on the topic, each matter will be determined in accordance with its own merits. For example, in the case of Singh v Singh 1983 (1) SA 781 (C), the court was of the view that a wife’s misconduct with another man constituted ‘substantial misconduct’ and outweighed the fact that the marriage had lasted 20 years. Whereas in the case the Wijker v Wijker 1993 (4) SA 720, the court found, that although adultery may contribute to the breakdown of the marriage, it is not necessarily “substantial misconduct” for the purposes of a forfeiture order. Accordingly, the Court found that the conduct must be so obvious and gross that it would be extremely distasteful to justice to allow the guilty spouse to get away with the spoils of the marriage.


As such, while the Court has a discretion to make an order as to forfeiture when claimed by a spouse upon dissolution of a marriage in community of property, it is important for spouses to remember that their conduct during the course of the marriage, especially to the extent that it contributes to the breakdown of the marriage, may provide sufficient grounds for the Court to order forfeiture of patrimonial benefits, either wholly or in part, against one spouse in favour of the other.



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