FORFEITURE OF PATRIMONIAL BENEFITS OF MARRIAGE

The Legal Matrix – Forfeiture of Patrimonial Benefits of a Marriage

When two partners come together in marriage, they do so out of love and envisage a lifetime partnership. So often, parties realize that they do not share common goals, they are not compatible, and infidelity or adultery afflict the marriage thus leading to the irretrievable breakdown of the marriage. Consequently, either one or both parties feel aggrieved by either party having to share their assets.

The common law position in South African divorces was based on the guilty principle. This meant that a spouse should not be allowed to benefit from his or her own wrongdoing and the court had to decide on the guilt or innocence of either spouse in leading to the breakdown of the marriage.

The Divorce Act came into law on 1 July 1979, and totally modified the position of the forfeiture of patrimonial benefits in divorces. In terms of Section 9(1) of the Divorce Act, 1979:

“a court may, when a decree of divorce is granted on the ground of the irretrievable breakdown of a marriage, 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 three factors; namely, 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”

In the circumstances, our courts have the discretion to make an order of forfeiture or to deny it. The issue of guilt or innocence of either party is irrelevant. As per the Divorce Act, our courts will consider a combination of factors leading to the breakdown of the marriage.

As seen in a recent High Court judgment of M v M (56859/2021) [2023] ZAGPHC 48 (21 February 2023) the parties were married out of community of property on 24 April 2011 with an antenuptial contract with accrual, their respective estates valued NIL. The Plaintiff (the wife) was a successful businesswoman, which business she had been operating since 2008. The Respondent (the husband) had been employed and was subsequently dismissed wherein he received a R270 000.00 pay out and used it solely for himself. When the Defendant became unemployed, the Applicant appointed him as COO in her corporation until he was dismissed for extorting money and competing with the corporation by setting up his own companies while he was still in the Plaintiff’s employ. During the subsistence of the marriage, the Defendant was dishonest, unfaithful, left the common household, and failed to contribute to the common home financially or emotionally.

It was common course that the marriage had irretrievably broken down. The only issue to be decided by the court was whether the Defendant should forfeit the benefits arising from the application of the accrual system of the marriage.

The Court confirmed that once a determination is made that a spouse would benefit by sharing in the estate of the other, the three factors of duration, substantial misconduct, and the cause of the breakdown have to be considered individually to determine whether the benefit would be undue. The court after considering the circumstances held the following:

• The Plaintiff’s estate had shown more growth; and
• If the accrual system had to be applied, the Defendant would benefit.

On the question of whether the benefit would be undue, the court made the following findings:

• The marital relationship lasted a short while and the Defendant soon lived and/or set himself up as a bachelor;
• The Defendant would visit their home for very brief and intermittent periods;
• The Defendant made no contribution to the common home financially or emotionally, or in any other manner; and
• The Defendant attempted to fraudulently extort money from the corporation and attempted to hijack the business of the Plaintiff.

The Court awarded forfeiture of patrimonial benefits of the accrual system including the plaintiff’s pension interest against the Defendant. The court was of the view that it would be unfair that the Defendant, having neglected his duties and responsibilities should benefit from the Plaintiff’s work.

As is evident from this judgment, an assessment of the relevant facts is essential prior to bringing a claim for forfeiture. We are available to assist and advise.