Lately, it seems that infidelity and adultery are other viruses plaguing South Africa, which family lawyers must resolve. So often, a party in a divorce is so aggrieved and upset by their spouse’s behaviour during the marriage, and rightfully so, that they cannot fathom having to give up an asset or let their spouse benefit in any way, upon divorce. We have had numerous clients wanting us to apply for forfeiture of the benefits of the marriage based on the other spouse’s bad behaviour during the marriage.
Community of property is 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[1].
Section 9(1) of the Divorce Act provides as follows:
FORFEITURE OF PATRIMONIAL BENEFITS OF MARRIAGE
Therefore, the courts are left with a discretion to either grant forfeiture or not. Our law has held that it would not be enough for a party to simply refer to the acquisition of a particular asset and then allege that the other party will be unduly enriched at the expense of the other if forfeiture is not granted[2]. In exercising this discretion, the court must therefore ask itself whether one party would be unduly benefitted were such order for forfeiture not made[3].
In answering this question, the courts should consider the following:
In the Wijker[4] case, it was held, that adultery may support an allegation on the breakdown of the marriage, but it is not necessarily “substantial misconduct” for the purposes of a forfeiture order. It must be conduct that is “so obvious and gross that it would be repugnant to justice to let the guilty spouse get away with the spoils of the marriage”[5]
A forfeiture order may not be granted simply to balance the fact that one of the spouses has made a greater contribution than the other to the joint estate[6].
In a recent case, V v V, the wife claimed forfeiture because her husband never contributed to her pension fund or the bond on her property. She contested that the husband would be unduly benefited if forfeiture was not granted based on his misconduct during the marriage. It was held that fault on the part of any of the parties is of no consequence for purposes of a determination concerning forfeiture of the marital benefits as provided in terms of Section 9(1) of the Divorce Act. The wife made several bold statements against the husband, alleging misconduct on his part. However, she failed to prove the misconduct on his part. All she did was raise issue and incidents that took place, which must have contributed to the irretrievable breakdown of the marriage. However, the breakdown of the marriage was proven to be attributable to both the wife and husband[7]. It was held further that the relatively short period of time over which the marriage subsisted did not constitute a reason to grant an order for forfeiture. The fact that the husband did not contribute to the pension fund or bond account did not mean he would be unduly enriched at the expense of the wife if the order was not granted. Thus, the wife failed to prove her claim and the order for forfeiture was not granted. The fact that the husband would benefit by the division of the joint estate is a natural consequence of a marriage in community of property, which both parties willingly contracted into.
It was held in Englebrecht v Engelbrecht[8] that ownership of another party’s property is a right which each of the spouses acquires on concluding a marriage in community of property. Unless the parties, (either before or during the marriage), make precisely equal contributions, the one that contributed less shall on dissolution of the marriage, be benefited above the other if forfeiture is not ordered. This is the inevitable consequence of the parties’ matrimonial property regime.
Thus,
it is clear that the courts take the granting of forfeiture orders very
seriously and that it takes more than an allegation of adultery of one spouse
alone causing the breakdown of the marriage, to be successful in a claim for
forfeiture of the patrimonial benefits of the marriage. It is a choice to enter
into a marriage in community of property in South Africa, and there are options
before and during the marriage to enter into an antenuptial or prenuptial
contract, thus clients are advised, whether already married or not, to
seriously consider how they would like to share in each other’s assets and
liabilities, so as to avoid having to share their entire estates upon the
dissolution of the marriage.
[1] H R Hahlo, The South African Law of Husband and Wife 5th edition, at pages 157-8.
[2] Matyila V Matilya 1987 (3) SA 230 (W), 235E–F
[3] Matyila V Matilya 1987 3 SA 230 (W)
[4] Wijker v Wijker 1993] 4 All SA 857 (AD).
[5] Singh 1983 1 SA 787 (C) 788H;
[6] V v V 2020
[7] V v V 2020
[8] 1989 (1) SA 597 (C),