A party who institutes divorce proceedings should keep in mind that he or she can claim forfeiture of the benefits of the marriage.
In terms of Section 9 of the Divorce Act, 1979, when a divorce is granted the Court may make an order that the patrimonial benefits of the marriage are to be forfeited by one party in favour of the other party, either wholly or in part. This claim must be made formally in the divorce proceedings, as the claim cannot be made after the divorce has been finalised. Forfeiture of benefits may apply to marriages in community of property and marriages out of community of property with the inclusion of the accrual system.
The Court will take certain factors into account when a claim for forfeiture is made, namely the duration of the marriage, the circumstances that gave rise to the breakdown of the marriage and any substantial misconduct on the part of either party. The Court will also consider whether one party will, in relation to the other party, be unduly benefitted.
In a marriage in community of property, the Court will take into account the abovementioned factors to determine whether a forfeiture of benefits will be fair. The party claiming forfeiture must show that the other party will be unduly benefitted should the forfeiture not be granted. The Court may thus make an order that a specific asset be forfeited or that a percentage of the estate be forfeited.
In a recent judgment of the Pretoria High Court cited as KKT v MSR, the parties were married in community of property for 20 months whereafter they no longer lived together as husband and wife. The breakdown of the marriage was due to both parties working late hours and to there being no intimacy between them. There was no real evidence of substantial misconduct and the Court found that the only way that forfeiture could be fairly ordered was to look at the duration of the marriage.
Taking into account its short duration, the Court granted partial forfeiture of benefits and stated that:
“While not cast in stone, it must therefore follow that in the determination of whether a benefit is undue, a Court is more likely to make such a determination where the marriage is of short duration as opposed to circumstances where the marriage was of long duration. Simply put, the longer the marriage the more likely it is that the benefit will be due and proportionate and conversely, the shorter the marriage the more likely the benefit will be undue and disproportionate”.
This article has been written by Lara Jansen van Rensburg, a Junior Associate in the Litigation Department of Garlicke & Bousfield Inc
For more information contact Lizette Martins, details below
NOTE: This information should not be regarded as legal advice and is merely provided for information purposes on various aspects of litigation.