By Siphesihle Mayedwa, Cape Town intern
When a decree of divorce is granted on the grounds of irretrievable breakdown 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, one party will unduly benefit in relation to the other, then only will it consider granting such an order. In addition, the party claiming division, transfer or forfeiture of benefits should provide the grounds on which he or she makes the claim.
Where the courts grant an order for forfeiture of patrimonial benefits against a party, he or she forfeits not their share of the common property, but only the pecuniary benefit that they would otherwise have derived from the marriage. In addition to being an order for division, it is also an order stipulating that the party defending forfeiture is not to share in excess of what the party requesting forfeiture may have contributed over the contributions of the party defending same.
Previously, the power of the court to order forfeiture of benefits was based on the common law principle that no person ought to benefit financially from a marriage which he or she caused to fail. South African courts have since abandoned fault or conduct as the main reason for a forfeiture order. In terms of the Divorce Act, 70 of 1979 (the Act), the court has discretion, when granting a divorce on grounds of irretrievable breakdown, to order that the patrimonial benefits be forfeited by the party who is the cause of the breakdown, provided that such party will unduly benefit if forfeiture is not granted in favour of the other. As a result, many allege that forfeiture of patrimonial benefits as provided for in the Act seems to penalise those who are found to have committed substantial misconduct. It is therefore contended that it remains unrealistic to proceed from the view that the responsibility for the breakdown of the marriage lies only with one of the spouses while the other is completely innocent.
In the reported case MC v JC, after 26 years of marriage the husband obtained a partial forfeiture order based on his wife’s adultery which was deemed to be ‘substantial misconduct’. On appeal, the court made a comment in passing, holding that section 9(1) might infringe the right to equality because it placed the party who had committed substantial misconduct in an unfavourable position when it comes to the distribution of the patrimonial benefits of the marriage. As a result, the court pointed out that many may feel forced to remain in an unhappy marriage for fear of losing patrimonial benefits.
Moreover, in the event that the court is tasked with having to consider a prayer for forfeiture of patrimonial benefits it does not only take into account the substantial misconduct, but also further factors such as the duration of the marriage, the circumstances which gave rise to the breakdown and whether the other party would be unduly benefited, since all factors are equally important. In the reported case of JW v SW, the court held that substantial misconduct does not on its own justify an order for forfeiture.
The courts’ intention when granting an order for forfeiture is therefore to protect vulnerable parties in divorce proceedings rather than punishing the party against which the order is sought. In the reported case Tsebe v Tsebe, the court found that the defendant used the proceeds of his pension pay-out exclusively for his own benefit, to the detriment of the joint estate and the plaintiff in particular. It was further found that the defendant would under these circumstances be unduly benefitted if the order for forfeiture was not granted. As a result the defendant was ordered to forfeit his claim to 50% of the plaintiff’s pension interest held in the Post Office Retirement Fund. It is important to note that where there is a risk that one spouse in a marriage may endanger the other spouse’s interest in the joint estate pending the divorce, our law often seeks to protect such spouse against the deliberate or reckless conduct of the other during divorce proceedings.
It is however important to note that South African courts are reluctant to grant an order for forfeiture of patrimonial benefits due to its adverse effects and its interference with the applicable matrimonial property regimes governing the division of such estates. In light of the above, it is evident that forfeiture of patrimonial benefits is indeed relevant in modern South Africa to ensure that there is a level of protection in favour of vulnerable spouses, especially women.
Divorce Act, 70 of 1979.
Supreme Court Act, 59 of 1959, Uniform Rule 18, Magistrates’ Courts Act 32 of 1944, Rule 6.
These include marriages in community of property and marriages out of community of property subject to the accrual system.
1937 WLD 126, at 127-8.
Quansay ‘’The order of forfeiture of benefits in divorce proceedings in Botswana’’.
MC v JC 2016 (2) SA 227 (GP).
1989 1 SA 597, 602-3.
JW v SW 2011 (1) SA 545 (GNP).
Tsebe v Tsebe  ZAGPPHC 575 – Forfeiture of pension interest in a divorce matter.
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