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Division of Business Property

Forfeiture: How serious is misconduct? Wijker v Wijker 1993 (4) SA 720

Section 9(1) of the Divorce Act empowers the court to order total or partial forfeiture of benefits, taking into account the following:

The duration of the marriage;

The circumstances which led to the breakdown of the marriage; and

Any substantial misconduct on the part of either spouse.

It is trite law that the three factors listed in section 9(1) need not all be present and need not be viewed cumulatively.   The Appellate Division in Wijker v Wijker indicated that although misconduct was no longer a requirement for obtaining a forfeiture order the introduction of a no-fault divorce did not do away with the fault as a factor in respect of forfeiture orders.  However the court warned that too much importance should not be attached to misconduct which is not of a serious nature.

In the Transvaal Provincial Division an order of divorce was granted.  The shares in a company, Jose Wijker (Pty)Ltd, as well as certain assets purchased by the lady with income derived from the company, were forfeited in her favour.  The man however succeeded on appeal in overturning the forfeiture order.

The marriage had been a long one.  It lasted approximately 35 years.  The man had been breadwinner of the family for over 20 years.  The lady during the course of the marriage had established a successful estate agency business.  The parties became estranged mainly due to the lady having become successful in business.

A dispute arose relating to the shares in the lady’s business.  The court on appeal found that the fact that the man is entitled to share in the successful business established by the lady is a consequence of their marriage in community of property.

The court further found that even if it is assumed that the man made no contribution to the success of the business and that the benefit which he will receive will be a substantial one, it does not necessarily follow that he will be unduly benefitted.

The court on appeal found that the trial judge had not made any findings on the “substantial misconduct” factor in the section dealing with forfeiture.  The appeal court found that having regard to all the circumstances and the fact that no substantial misconduct was proved against the man, it could not be concluded that the man would be unduly benefitted should an order of forfeiture, as claimed by the lady, not be made.  The appeal therefore succeeded.

In my opinion the decision on appeal was correct.  At the end of the day community of property is a universal economic partnership of the spouses.  Both spouses, irrespective of the value of their financial contributions, hold equal shares.

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

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