Moving towards a guilt-free divorce

July 1st, 2019
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Picture source: Gallo Images/Getty

Before the Divorce Act 70 of 1979 (the Divorce Act) was promulgated, the grounds of divorce in South Africa (SA) were –

  • malicious desertion;
  • adultery;
  • incurable mental illness; and
  • imprisonment for at least five years after having been declared a habitual criminal.

On divorce, the guilty party could be punished with an order of total forfeiture of marital benefits, unless the ground for divorce was mental illness. The logic behind this principle was that a spouse should not be allowed to benefit financially from a marriage, which he or she wrecked (see HR Hahlo The South African Law of Husband and Wife 5ed (Cape Town: Juta 1985) at p 430). The legislature decided to do away with ‘fault’ as a ground for divorce when it enacted the Divorce Act. Given SA’s elaborate Bill of Rights that has been espoused in the Constitution one would expect that any fault in South African divorce law would have been completely done away with and archived.

However, considering s 9(1) of the Divorce Act it would appear that ‘fault’ still has a role to play in our legal system. In terms of s 9(1) the court may order a forfeiture of benefits 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 be unduly benefited.

Whether marital misconduct should have an influence in the division of marital property is a significant policy question in SA. At present, a majority of court decisions hold that marital misconduct is a factor to be considered. Most of these decisions were very influential in the development of how s 9(1) is to be applied. See for example Singh v Singh 1983 (1) SA 781 (C), Engelbrecht v Engelbrecht 1989 (1) SA 597 (C), Wijker v Wijker 1993 (4) SA 720 (A), and Binda v Binda 1993 (2) SA 123 (W). An evaluation of these cases is not important for this discussion. What is important to note is what some of the pre-Constitution cases have said about ‘fault’ in relation to the section. In Klerck v Klerck 1991 (1) SA 265 (W) the court held that the legislature had unequivocally turned its back on the ‘guilt element’ and that it would be surprising if that rejected element would be allowed in through the back door in terms of s 9(1). In an even earlier case, the then Appellate Division (now Supreme Court of Appeal (SCA)) in the case of Beaumont v Beaumont 1987 (1) SA 967 (A) held that: ‘In many, probably most, cases, both parties will be to blame, in the sense of having contributed to the break-down of the marriage. In such cases, where there is no conspicuous disparity between the conduct of the one party and that of the other, our courts 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’.

Was s 9(1) really aimed at punishing the guilty party?

The generally accepted principle that a spouse could not forfeit that which they had brought into the marriage was introduced as early as 1904 in Celliers v Celliers 1904 TS 926 at 926 – 927. In Gates v Gates 1940 NPD 361 at 365 – 366, almost 40 years before the promulgation of the Act, the court expressed the opinion that the wife’s domestic contributions should be taken into account in the determination of the respective contributions to the joint estate, by virtue of the fact that they were a cost-saving exercise for the benefit of the earning spouse. Considering the historical role of women, it is clear that s 9(1) was aimed at creating some type of proprietary equality for women and not necessarily to create the notion of guilt.

Recent case law

On 26 August 2015 the Gauteng Division of the High Court in Pretoria had to decide whether a wife who had cheated on her husband several times deserved to be punished by forfeiting her marital benefits in MC v JC 2016 (2) SA 227 (GP). After asking the legal representatives to present legal arguments on the constitutionality of s 9(1), the court concluded that the section may be unconstitutional for punishing the guilty party.

Counsel for the wife made the most compelling arguments. Among others, he argued that the right to dignity as contained in s 10 of the Constitution entails the right not to be punished for actions that are legally neutral (ie, not unlawful). Such punishment would constitute an infringement into a person’s capacity to make choices. The right to dignity implies that a person’s capacity to make choices must be protected from unwarranted intrusions and thus also the freedom to contract. He further argued that the section may infringe the rights to privacy and property contained in ss 14 and 25 of the Constitution respectively. The right to privacy goes against exposing and scrutinising the private affairs of a person that is legally neutral for the sake of making a moral judgment. On the other hand, the right to property provides that no law may permit arbitrary deprivation of property. In this case, it could be argued that s 9(1) allows the arbitrary deprivation of the wife’s property.

Unfortunately, the court did not make a final ruling on the constitutionality of s 9(1) because counsel did not follow certain filing procedures. However, it did find that the wife had contributed to the marriage and that she should not forfeit the assets, which came about as a result of her contributions.

In the case of KT v MR 2017 (1) SA 97 (GP), that was decided on 10 August 2016 by the Gauteng Division of the High Court in Pretoria, the court focused mainly on the duration of the marriage. Both the husband and wife were not guilty of misconduct in that matter. However, their marriage only lasted for 24 months and was characterised by squabbles throughout the duration. The court reasoned that ‘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’. The court also took into account the fact that the husband had built a substantial estate before entering into the marriage. Furthermore, the wife had sold the property that she brought into the marriage and had used the money for her sole benefit. It ordered partial forfeiture against the wife.

The SCA also recently had a bite at the cherry on this issue. In the case of BS v PS 2018 (4) SA 400 (SCA) was decided on 28 March 2018, the court had to consider an appeal from the Eastern Cape Division of the High Court in Grahamstown, which had decided that the wife had to forfeit 80% of the marital benefits due to an alleged affair on her part. The SCA found that the High Court erred in placing all the blame on the wife due to the alleged affair. It made its decision without considering the constitutionality of s 9(1) of the Act. Instead, it focused on the circumstances of the case and the duration of the marriage. It was common cause that the wife paid 80% of the household’s expenses as she earned a higher salary than the husband. Furthermore, the parties had been married for 28 years. Based on those considerations the wife’s appeal succeeded.

Should s 9(1) be removed from the Act in its entirety?

In the article by Bertus Preller ‘Adultery and the Forfeiture of Assets in a Divorce’ (www.divorcelaws.co.za, accessed 6-6-2019) Mr Preller based his arguments on MC v JC and the recent Constitutional Court (CC) decision in DE v RH 2015 (5) SA 83 (CC) that s 9(1) is archaic and outdated. In DE v RH the CC found that the claim for damages against a third party that has committed adultery with a spouse was no longer part of our law in light of changing public policy, social norms and international attitude towards adultery. The court went on to state that the law cannot be held responsible to shore up or sustain an otherwise ailing marriage. Therefore, it remains the primary responsibility of the parties to maintain their marriage. Many lessons can be drawn from DE v RH in trying to solve the problem arising from s 9(1).

Mr Preller rightly concludes that the fault principle must be completely removed from the Divorce Act in clear and unambiguous terms. In his opinion, its retention only serves to afflict divorce law with confusion and uncertainty. Unfortunately, Mr Preller does not consider whether the problem could be addressed by removing some provisions from the section or whether it ought to be deleted altogether. Below, I will show that there are some worst-case scenarios, which would not be safeguarded if the whole section were to be deleted.

In an earlier article by Magdaleen de Klerk  ‘Fair divorce: Misconduct does not play a role in forfeiture claims’ 2014 (April) DR 37, the author correctly concludes as follows: ‘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’. She also did not opine on whether there are any good provisions that can be left intact in the section.

Suggested way forward

In the most recent case out of a series of cases considered in preparing this article, the Gauteng Division of the High Court in Pretoria ordered a full forfeiture of benefits against a wife where the duration of the marriage was very short and the wife had not contributed anything to the joint estate. The decision was made in M v M (GP) (unreported case no 14836/2007, 20-4-2018) (Ledwaba DJP) and was marked as unreportable. The parties were married to each other in community of property and the matrimonial assets comprised of two properties and the husband’s pension fund. The husband had purchased the immovable property before meeting the wife and during the marriage, he continued to contribute to the bond payments alone. He had also been contributing to his pension fund for many years before meeting the wife. The parties’ marriage lasted for less than two years and both parties accused each other of having affairs outside the marriage.

Just as in the KT v RM and BS v PS cases, the court made its decision based on the duration of the marriage and the circumstances, which gave rise to the breakdown thereof. I submit that misconduct should be removed as one of the factors to be considered when granting forfeiture of benefits. However, the courts should be free to order forfeiture of benefits based on the duration of the marriage and the circumstances around the marriage. In this regard, it goes without saying that the courts must also consider the duration that the parties may have lived together before they were married and the contribution that each one of them made to the marriage.

Will this infringe the parties’ freedom to contract? Marriage is not a type of contract that anyone enters into with the precision of a business contract. It is a lifelong bond based on feelings of love and commitment in which parties declare to be with each other for better or for worse and till death do they part. No one should be held bound to such commitments where the intention was clearly not to uphold them. Therefore, it is only fair and equitable for the court to order forfeiture where the intention to stay committed was defeated by a marriage of short duration, and the defendant did not contribute to the joint estate.

Tshepo Munene LLB (Unisa) is the executive director of Caselaw Consultant and the founder of www.familylaw.bar in Midrand.

This article was first published in De Rebus in 2019 (July) DR 14.