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Forfeiture of the benefits of the marriage in community of property - Soupionas v Soupionas 1983 (3) 757

In the case of Soupionas v Soupionas the Court found that:

“If people, after finding solace and satisfaction in each other’s physical company for a period of years (in casu, by living together), decide to marry, the legal consequences of the marriage must be an important motivating factor for that contract of marriage and, consequently, all the material consequences of that marriage must have been thoroughly contemplated between the parties and it would be sound public policy, in an action for divorce where the Court has to decide whether or not to order the forfeiture of the benefits of the marriage in community of property, to enforce such contractual views of the two parties against each other”.

In the present case the Court took into account that the parties had lived together from 1969 until their marriage in 1973. This was one of the factors the Court took into consideration in awarding a forfeiture order. The Court allowed certain special payments to be awarded to the wife, and furthermore that the joint estate of the parties in South Africa be divided equally between the parties. The estate which the defendant had in Greece was not included in this part of the order as it had been totally derived from the defendant’s own family in Greece and had no connection with the plaintiff at all.

In looking at the forfeiture aspect of the case, the Court found no substantial misconduct. The Court did however take note that the plaintiff (lady) was a very violent lady, but that the defendant had lived with her prior to the marriage for many years and he knew what he was getting himself into.

The Court also looked at the defendant’s conduct. He had been involved in an intimate emotional relationship with a third party during the course of the marriage, although adultery was not able to be proven. The Court also looked at the assaults by the defendant on the plaintiff, which happened on more than one occasion. Another factor in determining whether there should be forfeiture or not, is the contribution of each party to the joint estate. The plaintiff had contributed towards the parties’ joint estate during their period of co-habitation prior to marriage and after marriage.

As appears from the above case, the courts take into account certain factors in determining whether there should be a forfeiture order or not, namely whether there has been substantial misconduct, financial contribution of each party, and the duration of the marriage. In this particular case the Court even looked at the period of co-habitation of the parties prior to the marriage.

It is quite common also for a court to award a partial forfeiture order, as seems to be the case here, where the plaintiff forfeited such interests as she might have in any assets of the joint estate outside South Africa. It is seldom that a party will receive a full one hundred percent forfeiture order. This would occur normally in a situation where one party was convicted as a criminal during the course of the marriage, and made absolutely no contribution to the joint estate.

article written by Cape Town divorce attorney, Peter M Baker

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