Our law allows a court to make an order that one party may forfeit the patrimonial benefits of a marriage.
Section 9 of the Divorce Act 70 of 1979 provides:
Forfeiture of patrimonial benefits of marriage
(1) 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 by one party in favour of the other, either wholly or in part, if the Court, having regard to 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 parties, is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefited.
(2) In the case of a decree of divorce granted on the ground of the mental illness or continuous unconsciousness of the defendant, no order for the forfeiture of any patrimonial benefits of the marriage shall be made against the defendant.
Similarly, where the marriage is subject to the accrual system, section 9 of the Matrimonial Property Act 88 of 1984 provides:
Forfeiture of right to accrual sharing
The right to share in the accrual of the estate of a spouse in terms of this Chapter is a patrimonial benefit which may on divorce be declared forfeit, either wholly or in part.
The Court is not interested in the guilt or innocence of either party. Rather, it has the discretion to make an order of forfeiture or to withhold it. The Court considers the duration of the marriage, the circumstances that gave rise to its breakdown and any substantial misconduct on either of the spouses. The section does not consider the financial needs and obligations of the spouses or their ages and state of health, but there is little doubt that these circumstances, too, will be contemplated.
In Singh v Singh (1983) (1) SA 781 (C), the Court decided that the wife’s misconduct with another man amounted to ‘substantial misconduct’ and outweighed the fact that the marriage has lasted 20 years. One of the factors which influenced the Court in the case of Soupionas v Soupionas 1983 (3) SA 757 (T) in its decision not to make a forfeiture order for which both parties, on different grounds, had applied was that they had lived together for nine years before their marriage.
Section 9(1) does not empower the Court to award ’portion of an errant husband’s separate estate’ to his wife (see Rousalis 1980 (3) SA 446 (C)). Forfeiture is limited to the ‘benefits of the marriage’, presumably to the extent to which the penalized spouse is still enriched thereby.
The Court, in exercising its discretion under section 9(1), may declare a specific asset – a house, a farm, shares or a certain sum of money – forfeit, or it may make a forfeiture order in general terms, such as, ‘half of the patrimonial benefits which the husband [or the wife] has derived from the marriage shall be forfeited to the wife [or the husband], or, more specifically, ‘the patrimonial benefits derived by the husband [or the wife] from the marriage by virtue of community of property and community of profit and loss [by virtue of the accrual system] shall be forfeited by him [her] to the wife [husband]’.
As section 9(1) provides that the Court may only grant a forfeiture order ‘when a decree of divorce is granted’, it appears that a Court may not grant such order later.