Forfeiture of patrimonial benefits

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When equal distribution of assets is simply not fair

Matrimonial regimes only become relevant when a marriage is dissolved. Marriage out of community of property is a theoretical and legal concept when two people are happily married and sharing their lives. However, if the marriage breaks down and divorce looms, the couple married out of community of property can take their own assets and go their merry way (leaving aside the issue of accrual for the sake of illustration). A couple married in community of property, by contrast, agrees by definition to divide assets equally in the event of divorce. This custom has historically protected women in particular, ensuring they were not left penniless at the end of a marriage in which they had been financially dependent on their spouse. However, sometimes a fair distribution of assets is anything but fair. In this case the law allows for forfeiture of patrimonial benefits. We’ll explore what this means and when it might apply.

Provisions of the Divorce Act

South African divorce law aims to ensure fairness in the division of assets. Section 9(1) of the Divorce Act 70 of 1979 gives courts the authority to order the forfeiture of patrimonial benefits if one party would gain an unfair advantage from the dissolution of the marriage.

Before the Divorce Act, the power of the court to order forfeiture of benefits derived from the common law. The principle was that no one should benefit financially from a marriage if their behaviour had caused the breakdown. A court could not grant a forfeiture decree unless an applicant claimed one, and once claimed the court could not withhold it. The intention of the law was honourable, but the mechanism was blunt. Under the Divorce Act, the misconduct of either spouse is only one of the factors a court considers in determining whether to order forfeiture.

What is forfeiture of benefits?

The general rule is that when couples are married in community of property, their joint estate must be divided equally on the dissolution of the marriage. Because not everything can be divided exactly in half, the couple agrees how to split assets, and a settlement agreement is drafted and incorporated into the divorce decree. If they cannot agree, the court may appoint a liquidator to oversee the division.

Section 9 of the Divorce Act allows courts to deviate from these general rules in awarding forfeiture of benefits of marriage in community of property, if one spouse would enjoy undue benefit in relation to the other as a result of equal asset distribution. In that case, the spouse in question would not be entitled to their half share of the joint estate, either wholly or partially.

The purpose of forfeiture is to prevent one spouse from benefiting unjustly, especially if they played a significant role in causing the breakdown of the marriage. The court has the discretion to order forfeiture by one spouse in favour of the other, considering three key factors:

  • The duration of the marriage
  • The circumstances that gave rise to the breakdown of the marriage
  • Any substantial misconduct by either spouse and the fact that an undue benefit may accrue to one spouse in relation to the other if the court does not grant an order of forfeiture

The Act restricts the courts to consideration of these grounds and the court may not take any other factors into account.

Forfeiture of patrimonial benefits process

A spouse claiming forfeiture must provide facts that support their claim and define the nature of the relief sought. The onus is on the applicant to prove the nature and the ambit of the benefit to be forfeited and they must prove the extent to which it is an unfair benefit to the other spouse.

Example case

In a recent case, the wife claimed a decree of divorce and forfeiture of the patrimonial benefits of the marriage by the husband. He had made no contributions towards the bond instalments on the family home, the payment of the vehicle instalments or the household expenses. The husband had received an amount from his pension fund and used it solely for himself. The court held that he had committed substantial misconduct by using his pension fund for his sole benefit and to the disadvantage of the joint estate. Therefore, equal distribution of the matrimonial estate would be an unfair benefit to him if the court did not grant a forfeiture order.

A delicate balance

South African divorce law seeks to ensure equity in the dissolution of marital estates by addressing instances where one party may gain an unfair advantage. The framework provided by the Divorce Act balances fairness with the conduct of the individuals. Ultimately, the forfeiture mechanism serves as a vital tool for maintaining fairness and equity in divorce proceedings.

Cape Town family lawyers can help

If you are married in community of property and considering divorce, and you feel your spouse may benefit unfairly from the conventional asset division, Simon Dippenaar & Associates Inc. can help. SD Law is a family lawyer in Cape Town, Johannesburg and Durban with specialised divorce attorneys. Call Simon on 087 550 2740 or email info@sdlaw.co.za and we will look at your case in detail and advise you on the best way forward.

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Disclaimer

The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.

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