When a decree of divorce is granted on the grounds of irretrievable breakdown of a marriage in community of property or out of community of property with the inclusion of the accrual system/regime, 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.
Section 9 of the Divorce Act, provides for forfeiture of patrimonial benefits, of which the purpose is to ensure that a person does not benefit from a marriage that he or she has ‘actively’ broken down:
Section 9(1) of the Divorce Act, provides that when a decree of divorce is granted on the ground of the irretrievable breakdown of the 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, in circumstances where, if the order for forfeiture is not made, the one party will, in relation to the other, be unduly benefited.
In the event that the court is tasked with having to consider a prayer for forfeiture of patrimonial benefits, it does not only take into account the substantial misconduct – as the case would be in the past, but other factors such as the duration of the marriage, the circumstances that gave rise to the breakdown and whether the other party would be unduly benefited – in the Reported case of JW v SW, the court held that substantial misconduct does not on its own justify an order for forfeiture – there are more requirements which cannot exhaustively be addressed herein.
The court’s intention when granting an order for forfeiture is therefore to protect vulnerable parties in divorce proceedings, rather than punishing the party against which the order is sought.
In the reported case of Tsebe v Tsebe – the court found that the defendant used all the proceeds of his pension pay out exclusively for his own benefit, to the detriment of the joint estate, and the Plaintiff in particular – it was further found that the defendant would under these circumstances be unduly benefited if the order of forfeiture was not granted – as a result the defendant was ordered to forfeit his benefits.
Finally, a party claiming forfeiture must plead the necessary facts to support that claim and clearly identify those assets he/she wishes the other party to forfeit by relying on section 9(1) of the Divorce Act, and not any other factor that is not recognised thereby.