By Jehoshaphat John Njau
The decision of whether or not to grant an order of forfeiture of patrimonial benefits in divorce actions remains one of the most contentious subjects in the South African family law landscape. In South Africa the award of forfeiture is governed by Section 9 of the Divorce Act 70 of 1979 (the Act).
What is an order / award of forfeiture?
The order of forfeiture of patrimonial benefits entails an order that one party forfeits and loses the assets which he or she would have been entitled as a result of the marriage in community of property or benefits accrued as a result of an antenuptial contract incorporating accrual.
The premise behind a party seeking an order of forfeiture is based on the notion that, if the order is not granted, one party (the guilty party) will be “unduly benefited” to the disadvantage of the other party (the innocent party).
Where is the order applicable?
The order of forfeiture can be requested where the parties divorcing are married to each other either in community of property or married our of community of property with the inclusion of accrual.
Factors to be considered
For the court to order and award forfeiture of patrimonial benefits it looks at and considers three (3) factors:
- Duration of the marriage:
- When considering the duration of the marriage, the court will order forfeiture if the court regards the marriage to be of short duration. In other words, the court will be less inclined to order forfeiture in marriages of long duration.
- The Act does not provide guidance as to how the courts should go about establishing that a marriage is of either long or short duration. It is therefore left to the courts to make their own pronouncement based on the facts of each case.
- The circumstances which gave rise to the break-down of the marriage:
- The Act does not provide a closed list of factors / circumstances which may be taken into consideration which gave rise to the breakdown of the marriage. Analysis is therefore made on case-by-case basis.
- Any substantial misconduct on the part of either of the parties:
- Misconduct of a party alone is not a factor which can bring about a forfeiture order, such misconduct must be substantial.
- In considering whether or not the misconduct is substantial, the court looks for a conduct 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” such as infidelity, deliberate and negligent misappropriation of joint estate’s assets.
There is no hierarchy as far as factors mentioned above are concerned, and that all the three (3) factors are equally important hence no one factor is individually decisive. This essentially means that each factor on its own, or with another, is capable of convincing the court to grant a forfeiture order.
Conclusion
Ultimately the granting of the order of forfeiture remains at the discretion of the court after it has had regard to the circumstances of a particular case, the nature of the evidence led and the facts proven before the court.