It is a requirement in divorce proceedings that the party instituting the divorce action should attribute reasons for the irretrievable breakdown of the marriage. Adultery and infidelity are common grounds of divorce in South Africa. In most instances, the aggrieved party is likely to plead for forfeiture because of the nature of the marriage they entered. The purpose of forfeiture is to ensure that a person does not benefit from a marriage, which they have intentionally broken down.

There are three matrimonial property systems as indicated by the Matrimonial Property Act 88 of 1984. Marriage in community of property, the principle of marriage in community of property promotes equal powers of spouses wherein two estates become one. The norm is that when you are married in community of property and a court finds that there are grounds for the bonds of marriage to be dissolved, the estate is equally divided between the two parties.

Marriage out of community of property with accrual, where the principle applied is the spouse whose estate shows a smaller growth earns the right to claim from the spouse’s estates with the most growth, and marriage out of community of property excluding the accrual where spouses have separate estates. If the accrual has been excluded the general rule is that the parties do not share each other’s estate. Notwithstanding the above principles spouses may still benefit each other by ways of a donation or a will. A spouse is also able to benefit through intestate succession where the other spouse has died without a valid will.

The relevant legal principles for one to claim forfeiture are to be found in s 9(1) of the Divorce Act 70 of 1979. The Act provides as follows:

‘When a decree of divorce is granted on the ground of the irretrievable breakdown 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 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 by unduly benefited.’

It is the duty of the court to scrutinise the undue benefit of the other party if the order for forfeiture is not granted in favour of the aggrieved party. There are three elements that the court will take in consideration 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 of the parties; and
• the fact that an undue benefit may accrue to the one part in relation to the other if an order for forfeiture is not granted.

It is a requirement that each of the factors should be given due consideration without requiring the presence of each of them, including their accumulative effect.

In the case of KT v MR 2017 (1) SA 97 (GP) the court dealt with forfeiture of patrimonial benefits that was claimed by the husband. Regarding the duration of the marriage, the court stated that it was a short marriage as the parties were only married to each other for 20 months, the court also considered that the larger part of the estate was established by the husband prior to him marrying his wife. The court ordered partial forfeiture to the wife.

There are many grounds that may give rise to the breakdown of the marriage, in the case of Molapo v Molapo (FB) (unreported case no 4411/10, 14-3-2013) (Kruger J) the defendant had attempted to burn down the family house, assaulted the plaintiff and failed to take care of his family.

Examples of substantial misconduct are assault, adultery, financial misconduct and physical or emotional abuse. In the case of Matyila v Matyila 1987 (3) SA 230 (W) the court held that if a party failed to prove substantial misconduct, forfeiture could not be ordered. In the case of Wijker v Wijker [1993] 4 All SA 857 (AD) the court held that adultery may support an allegation on the breakdown of the marriage, but if it is not necessarily substantial misconduct for the purpose of a forfeiture order. The court further stated that it must be found that is ‘so obvious and gross that it would be repugnant to justice to let the guilty spouse get away with the spoils of the marriage’ (Matyila at 235). Along with irretrievable breakdown of the marriage one may also reply on mental illness and continued unconsciousness as one of the grounds for divorce. However, s 9(2) of the Divorce Act provides as follows: ‘In the case of a decree of divorce granted on the ground of the mental illness or continuous unconsciousness of the defendant, no order for the forfeiture of any patrimonial benefits of the marriage shall be made against the defendant’.

The intention of the court in granting forfeiture is to ensure that the rights of the defenceless parties are protected, ensuring that the party who is the main cause of the divorce will walk away with little or nothing at all.

Lulama Kamfer Phiri LLB Hons (UWC) Postgraduate Dip Drafting and Interpretation of Contracts (UJ) is a legal practitioner at Kamfer Attorneys Inc in Pretoria.

This article was first published in De Rebus in 2023 (Jan/Feb) DR 9.