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Forfeiture of benefits of marriage


Forfeiture of the benefits of the marriage in community of property can either be 100% or partial. Factors taken into consideration include duration of marriage, circumstances which led to breakdown of the marriage and any substantial misconduct. Another important factor is financial contribution as was considered in NE Molapo v MA Molapo (4411/10)

The parties had owned a property at 46 Diederick Street, Ehrlich Park, Bloemfontein. Since the property had been purchased the plaintiff’s averment was that it had only been her who had paid the bond on the fixed property, as well as the rates and taxes, water and electricity costs. 

The defendant’s averments on his court papers were that he had owned a house when he had first met the plaintiff, and that the parties had lived together there for about 10 years. He averred further that he had paid for her studies until she had qualified as a teacher. He also averred that the plaintiff had persuaded him to sell the house, and after this they bought the communal home. The defendant also averred that from the proceeds of the sale of his first home he had bought a Mazda 323 motor vehicle and used the balance to renovate the current matrimonial home.

Both parties in this court case claimed forfeiture of the benefits of the marriage in community of property. The legal representative for the plaintiff argued that there should have been at least a partial forfeiture order against the defendant. He argued that the marriage had broken down as a result of the defendant’s violence. He also argued that none of the R17 000 profit from the first house went into the second house. The defendant’s legal representative submitted that the marriage lasted for more than 20 years, and that the duration of the marriage is not a factor which carried great weight in determining whether there should be forfeiture or not. He further argued that the court should take strong consideration of the fact that the defendant had supported the plaintiff before the marriage. The defendant’s legal representative furthermore argued that the problems in the marriage started when the second house was bought. He argued that the plaintiff had assaulted the defendant before her friends. She said that he had “earned peanuts” according to the defendant’s legal representative. The defendant’s legal representative argued that the defendant’s version was more probable than that of the plaintiff.

The final order of the court in this case was that the defendant’s benefits of the marriage in community of property were forfeited, and the court ordered the fixed property to be sold and the plaintiff to receive two thirds of the net proceeds and defendant one third. The equity in the house was R400 000. 

The court in coming to its conclusion found that the defendant was entitled to salvage something from the marriage. The court found further that his substantial misconduct and the fact that he made no meaningful contribution to the new house and put no money from the old house into the new house, did reduce his rights. The court found that on the facts of the case, the misconduct of the defendant did lead to the dissolution of the marriage. The court found that it would be a fair order that the proceeds of the sale of the new house be shared between the parties on the basis that the plaintiff gets two thirds and the defendant one third.

Forfeiture of the benefits of the marriage in community of property comes up very often in our case law. It can count heavily against the party in the divorce matter if they do not contribute financially, and if there has been gross misconduct. It often happens, as in the above case, that the courts do not award a 100% forfeiture, but only a partial forfeiture order.

article written by Cape Town divorce attorney, Peter M Baker



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