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Forfeiture of benefits of marriage in community of property - JW v SW 2011


In terms of the Divorce Act 70 of 1979 a court is allowed to award forfeiture of the benefits of the marriage in community of property in certain circumstances, and the one party would then not be entitled to his or her half share of the joint estate, either wholly or partially.

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In order to award the forfeiture, the courts look at certain factors such as:

The party who forfeits, may in the end lose his or her rights to a fifty percent share of the fixed assets such as a house, or may only be awarded a smaller share of the equity than the other party. Any other asset may also be forfeited.

A failure to contribute financially is a big factor in determining whether forfeiture should be allowed or not.

The most recent case in our case law dealing with forfeiture was that of JW v SW 2011 (1) SA 545 (GNP). The wife applied for a forfeiture order against the husband, and at the same time the husband wanted a share of the wife’s pension.

It was a seventeen year marriage and the husband had discovered that the wife was secretly receiving maintenance payments for a child born before the marriage, whom she had claimed her husband to have been the biological father. On the facts of the case the husband had become aggressive after this and had even assaulted the wife.

At the time of marriage the husband had owned a house, but the wife had brought no assets into the marriage. The wife had a huge pension, as she had been employed at the same place for 25 years. The husband had no pension.

The court awarded a decree of divorce and division of the joint estate in equal shares. The claim for forfeiture of the patrimonial benefits and a share of the pension were dismissed. The court found that a party who sought a forfeiture order would have to prove the nature and extent of the benefit. In the event of failure to be able to prove this, the court would not be in a position to make a decision if the benefit was undue or not.

The wife had only proved the value of the house at the time when the divorce had been instituted, but had not proven what the value of the house was when the parties had married seventeen years earlier. She had therefore not proven the extent of the husband’s benefit on the dissolution of the marriage.

The court also looked at what was fair and just. What is quite important in forfeiture cases is that the court has the discretion to award forfeiture or not. In this particular case the court exercised its discretion, and both the wife’s claim for forfeiture and the husband’s counterclaim for a share of the wife’s pension were dismissed.

Related articles

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Entering into legal proceedings in Community of Property marriages.

Forfeiture of benefits of marriage in community of property - Wijker v Wijker 1993




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