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Community of Property Marriage and Benefits Forfierture

Persad v Persad and Another 1989 (4) SA 985

Plaintiff (the lady) and first Defendant (her husband) were married in 1974.  They had no children and were married in community of property.  The city council was the second Defendant.

The first Defendant had concluded a lease with the second Defendant in respect of a house, administered by the second Defendant under a municipal housing scheme.  The court was now faced with the question whether it could order the second Defendant to transfer to the Plaintiff all the rights, title and interest in the lease.

The Plaintiff and the first Defendant had concluded the lease in 1977 and stayed at the house for twelve years right up until the date of divorce.  Throughout the period the Plaintiff, who was employed, paid from her wages every cent of the rental for the house, as well as all other household expenses.  The first Defendant contributed nothing to the payment of either.

The first Defendant did not work and chose not to seek employment.  The Judge, Didcott J, in his judgment refers to and speaks of first Defendant as follows “Idle and dissolute, a layabout and a drunkard, he sponged on his wife and lived off her industry”.  Neither party had any possessions worth mentioning or any money of which to speak, and all they really had were the occupation of the house and the Plaintiff’s job.

The Plaintiff now relied on section 9(1) of the Divorce Act 70 of 1979 and contended that the tenancy amounted to a patrimonial benefit of the marriage which the court could declare forfeited in terms of the section.  Judge Didcott in his judgment mentions that the tenancy seemed to have been a benefit derived from the marriage, and accordingly a benefit of the marriage.

The court refers further to the tenancy as being an “asset of the joint estate” and that it was acquired during the marriage.  It was furthermore acquired for the purposes of the marriage, for the purposes of the matrimonial home that was needed because of the marriage.

The court furthermore mentions that the Plaintiff did not pay for the acquisition of the tenancy.  Nothing had to be paid for its acquisition.  The Plaintiff’s payments had nothing to do with its acquisition.  They had a lot to do with its preservation.  If Plaintiff had not paid the rent, nobody else in all probability would have done so.  And then inevitably it would have been terminated.

The court sees no reason in this case why payments preserving an asset of the joint estate should be distinguished from those made in other situations for its acquisition.  I agree with the court’s view on this.

The court in the end decided that the second Defendant had to transfer the tenancy from the first Defendant to the Plaintiff.  The court in other words granted the order for forfeiture as prayed for by the Plaintiff.  This was a fair and legally correct decision.

This article was written by Cape Town divorce lawyer, Peter M Baker

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