Fair divorce: Misconduct does not play a role in forfeiture claims

April 1st, 2014

By Magdaleen de Klerk

There is a general misconception in divorce litigation that a finding of ‘substantial misconduct’ on the part of a spouse who, for example, had extra marital affairs, justifies an order for forfeiture of the benefits of a marriage in community of property or, alternatively, the right to share in the accrual. Substantial misconduct on the part of a spouse is, however, only one of the factors that the court may take into consideration in this regard.

Substantial misconduct

It was held in JW v SW 2011 (1) SA 545 (GNP) that a finding of substantial misconduct does not on its own justify a forfeiture order. The finding of substantial misconduct in this case stemmed from the husband’s conviction and imprisonment after having assaulted his wife. The conclusion by the court not to grant an order for forfeiture was primarily based on the fact that the husband brought an immovable property into the joint estate.

This principle was also laid down in the case of Engelbrecht v Engelbrecht 1989 (1) SA 597 (K) where the court held that it could never have been the intention of the legislature that a wife – who had for 20 years assisted her husband faithfully – should, because of her adultery, forfeit the benefits of the marriage in community of property. The court further illustrated this point by using the following example: A wealthy elderly man marries a young poor girl. After a marriage of short duration the man realised that he made the mistake of his life by marrying her and, on this realisation, cheated and assaulted his wife. The judge concluded that, notwithstanding the husband’s substantial misconduct, a forfeiture order would be granted against his wife, due to the fact that the marriage was of short duration.

Section 9(1) of the Divorce Act 70 of 1979

Section 9(1) of the Divorce Act, which deals with the aspect of forfeiture, reads as follows:

‘When a decree of divorce is granted on the grounds of the irretrievable break-down 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 break-down 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.’

The section therefore refers only to three circumstances the court may take into account when considering forfeiture, namely –

  • the duration of the marriage;
  • the circumstances that gave rise to the break-down thereof; and
  • any substantial misconduct on the part of either of the parties.

Conspicuously absent from s 9 is a catch-all phrase permitting the court, in addition to the factors listed, to have regard to any other factor. These three factors therefore fall within a relatively narrow ambit. It was held in the case of Wijker v Wijker 1993 (4) SA 720 (A) that s 9 does not provide for the application of the principle of fairness.

It was further held that it is obvious from the wording of s 9 that the first step is to determine whether or not the party against whom the order is sought will in fact benefit. Once that has been established, the trial court must determine, having regard to the factors mentioned in the section, whether or not that party will, in relation to the other, unduly benefit if a forfeiture order is not made.

In Klerck v Klerck 1991 (1) SA 265 (W) it was held that s 9 has to be interpreted against a certain known common law background. (The idea behind the old forfeiture rule prior to s 9 was that the guilty spouse must not be allowed to benefit from a marriage that he or she has wrecked.) It was further held that the legislature has unequivocally turned its back on the ‘guilt element’ and that it would be surprising if that rejected element would be allowed in through the backdoor in terms of s 9.


It was held in Moodley v Moodley (KZD) (unreported case no 7241/2002, 14-7-2008) (Tshabalala JP) that what the defendant forfeits is not his share of the common property, but only the pecuniary benefit that he would have otherwise derived from the marriage. It was further held that it was of the utmost importance that the claimant, in respect of a claim for the forfeiture, must prove some kind of contribution that exceeds the contribution of the other party towards the joint estate.

As to what constitutes a contribution towards the joint estate, it was held in Bezuidenhout v Bezuidenhout 2005 (2) SA 187 (SCA) that the traditional role of a housewife, mother and homemaker should not be under-valued because it is not measurable in terms of money.

Substantial misconduct or adultery

In Swart v Swart 1980 (4) SA 364 (O) it was held that adultery and desertion might in certain instances merely be symptoms and not causes of a marriage breakdown and also that conduct that cannot be considered very blameworthy, such as refusal to engage in conversation, might be a factor leading to the marriage breakdown.

In Beaumont v Beaumont 1987 (1) SA 967 (A) it was held that in many and probably most cases, both parties will be to blame, in the sense of having contributed to the breakdown of the marriage. In such case, where there is no conspicuous disparity between the conduct of the one party and that of the other, the court will not indulge in an exercise to apportion the fault of the parties and thus nullify the advantages of the no-fault system of divorce.

In Kritzinger v Kritzinger 1989 (1) SA 67 (A) it was held that even if the appellant’s adultery was the immediate cause of the marriage coming to an end, the respondent was by no means free from blame. Human experience suggests that, generally speaking, where there is a breakdown in a marriage, the conduct of both parties has contributed to it. It seems probable that it was, inter alia, the recognition of this basic truth that led the legislature to abolish, (save to the extent where it is expressly indicated otherwise), the notion of ‘fault’ in divorce.

In the Engelbrecht case it was held that the point of departure must be that parties must be held to their antenuptial agreements. In the Wijker case it was held that the judge in the court a quo, in finding that it would be unfair to allow the appellant to share in his wife’s estate agency, lost sight of what community of property entails. The court held that s 9 does not provide for the application of the principle of fairness in order to deviate from the nature of community of property.


Section 9 does not provide for the application of the principle of fairness, neither does it impose a purely penal sanction for a party’s misconduct. A party cannot forfeit what he or she has contributed towards the marriage. The court must uphold the law and not make a moral judgment. Attorneys, when advising their clients, should do so as well.

  • See also 2011 (July) DR 20 and 2011 (Nov) DR 22.

Magdaleen de Klerk BA (Hons) BProc (UFS) Dip Human Rights (UP) is an attorney at Davel de Klerk Kgatla in Polokwane.

This article was first published in De Rebus in 2014 (April) DR 37.