Substantial misconduct as a factor to grant forfeiture of patrimonial benefits of a marriage

September 1st, 2023
M v M (SCA) (unreported case no 022/2022, 26-5-2023) (Mbatha JA (Molemela, Meyer and Matojane JJA and Siwendu AJA concurring))

In terms of s 9 of the Divorce Act 70 of 1979, a court granting a decree of divorce on the ground of irretrievable breakdown of the marriage, 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 with due regard to a variety of factors, one being substantial misconduct on the part of either of the parties.

It is against this section of the Divorce Act that this article will analyse the case of M v M and the legal principles emphasised therein.


The applicant and respondent were married to each other in community of property and profit and loss. In October 2016, the respondent instituted an action for divorce against the applicant and ancillary relief thereto in the Limpopo Division of the High Court, Polokwane (para 1). The High Court dismissed the applicant’s counterclaim for a partial forfeiture order in respect of the applicant’s pension benefits and ordered that the applicant’s pension fund pay out the respondent 50% of the applicant’s pension interest/benefit to the respondent (para 1).

As a result of the High Court’s order, the applicant turned to the Supreme Court of Appeal to appeal the judgment and order, except the order dissolving the marriage (para 2). The issues in dispute were as follows:

  • Firstly, whether the applicant was entitled to a partial forfeiture order in respect of her pension interest/benefit held in the Government Employees Pension Fund (para 24).
  • Secondly, whether the respondent’s prolonged extramarital affairs and the abuse and misappropriation of the funds from the various family businesses for the benefit of his girlfriend and the respondent’s failure to contribute meaningfully to the joint estate translated into substantial misconduct on his part (para 24).
  • Thirdly, whether the respondent would be unduly benefitted if the order for partial forfeiture was not granted (para 24).

The evidence of the trial court can briefly be set out as follows. It transpired from the applicant’s testimony that the respondent’s prolonged extramarital affair led to the irretrievable breakdown of the marriage relationship despite her attempts to save her marriage through professional counselling (para 7-8). In addition, the respondent had a child with his mistress during the subsistence of his marriage with the applicant, which incident was described to have brought her pain and humiliation (para 7). Further, in favour for her claim for a partial forfeiture of benefits, the applicant testified that respondent misappropriated their joint estate by giving money to his mistress to start a cash loan business (para 10). Also, the respondent built a double-storey house for his mistress and sold cattle forming part of their estate and deposited the proceeds of the sale into his mistress’s business banking account (para 11). The applicant further testified that the respondent gave his mistress access to their motor vehicles without her consent (para 11).

The respondent’s evidence was said to be riddled with inconsistencies and discrepancies, which he struggled to justify and substantiate. Despite this, the full court dismissed the appeal by the applicant for an order for partial forfeiture of benefits, by reasoning that both parties had committed substantial misconduct and undue benefits should not accrue to one party in relation to the other if an order for forfeiture was not granted (para 23).

Legislative provisions on the concept of forfeiture

It is trite law that entitlement by one spouse to share in the pension interest of the other spouse is regulated by the provisions of s 7(7) and 7(8) of the Divorce Act. On the contrary, s 9 of the same legislation holds that the court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, having regard to certain factors, and if satisfied that if the order for forfeiture is not made the one party will in relation to the other party be unduly benefitted. The factors contained in s 9(1) that the court had to consider for a claim of forfeiture are: The duration of the marriage, the circumstances which gave rise to the breakdown of the marriage and any substantial misconduct on the part of either of the parties.

Wijker v Wijker 1993 (4) SA 720 (A) outlined certain legal principles in relation to s 9(1) of the Divorce Act. It held that a party seeking an order for forfeiture of benefits does not have to prove the existence of all three factors in s 9(1) cumulatively. The question to be asked by the court is whether one party will be unduly benefited if an order of forfeiture was not made. Furthermore, in Wijker the court held that substantial misconduct is one that is found to be so ‘obvious and gross that it would be repugnant to justice to let the “guilty” spouse get away with the spoils of the marriage’ (para 28).

In Botha v Botha 2006 (4) SA 144 (SCA) the principles emanating from the Wijker judgment were endorsed and the court held that only the factors in s 9(1) should be accorded consideration and the application of this section should be within the context of the evidence tendered in court.

Analysis and evaluation

The appeal court found that the trial court and the full court failed to apply the principles advocated in the Wijker judgment by coming to factually incorrect conclusions (para 34). A full bench in the High Court concluded, among others, that both the applicant and respondent have ‘committed substantial misconduct, [and] an undue benefit will not accrue to one party in relation to the other if an order for forfeiture is not granted’ (para 34). Further, it found that the full court failed to consider the evidence of the applicant that she could not accord the respondent his conjugal rights, as she feared contracting HIV/AIDS virus (para 35). This is a clear indication that she did not give the respondent permission to continue with his extramarital affairs (para 35). The court further failed to consider the evidence of the applicant that when she sought counselling for their marital problems, the respondent told the therapist that he would never stop having extramarital relationships (para 35).

Based on the lack of appreciation of the facts in the trial court, the appeal court is empowered to reconsider the facts. The appeal court found that the respondent’s prolonged relationship with his mistress existed for a long period of time while he was still married to the applicant (para 37). Also, this relationship of the respondent to the mistress was gross and humiliating as it was flaunted in the public domain to the prejudice of the applicant (para 37). The respondent only filed for divorce at the time there was nothing left in the joint estate except for the applicant’s pension interest and a few assets (para 37). Further, the respondent made little contributions for the benefit of the joint estate, while the applicant struggled to make ends meet (para 37). In addition, the respondent channelled assets of the joint estate to benefit his mistress and such constitutes misconduct as he deprived the joint estate from benefiting (para 39). Considering the above, the appeal court found that the evidence presented before it proved that the respondent’s actions amounted to substantial misconduct and his claim ‘of 50% of the pension benefit which has accrued to the applicant is not sustainable’ (para 41).


In conclusion, the court held that the above cited authorities and the evidence presented before it justifies the granting of order of forfeiture of the half share of pension benefits against the respondent. It is clear from the above that courts are called on to decide on matters decisively and appreciate the facts presented before it. One party should not be unduly benefitted to the prejudice of the other especially if one party’s actions amounted to substantial misconduct and abuse of the joint estate.

Mapakiso Pita LLB (UFS) LLM (Business Entities) (UFS) is a candidate legal practitioner at Legal Aid South Africa in Welkom.

This article was first published in De Rebus in 2023 (Sept) DR 30.