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Forfeiture of benefits of marriage in community of property

Usually, when a couple is married in community of property (ICOP), the joint estate is divided equally between them at divorce. However, 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. This is so that they do not unduly benefit from breaking down a marriage on purpose: The court do not easily grant forfeiture orders and solid evidence is critical.

Photo of couple getting married with coins and a gavel

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

The duration of the marriage;
The circumstances which led to the breakdown of the marriage; and
Whether was any substantial misconduct on the part of one of the parties.

In Wijker vs Wijker (an Appellate Division case) the court held that these 3 factors rank equally and should be considered cumulatively.

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.

Evidence must be presented & cross-examined

As can be seen in the cases below, the courts do not easily award a forfeiture; the bar is relatively high which needs to be cleared; the court are evidence led, and it is critical that proof is provided both in the particulars of claim for the plaintiff as well as by cross-examining the defendant on the evidence (so that ic an be accepted as properly tested evidence.

If substantial misconduct is not proven, then forfeiture cannot be ordered. Issues which serve as grounds for the irretrievable breakdown of a marriage, are usually not substantial misconduct for the purpose of forfeiture.

TS vs MLS 2024 : equal division of joint estate ordered

The most recent case dealing with forfeiture in our case law was judged upon in March 2024 in the Gauteng/Pretoria Division of the High Court. TS, the plaintiff, issued a divorce summons against her husband in 2022, which he decided to defend. The couple had married in 1999 in community of property (ICOP), and had 2 children, who were majors at the time the divorce took place.

The wife sought orders for:

A decree of divorce
Husband to forfeit any claims to her pension benefits
the joint estate to be divided between the parties (including cars and properties and proceeds of properties in both their names):
costs, if the husband opposed the plaintiff's claims (which he did)

The husband was agreeable to getting divorced, but sought:

division of the pension interest of the wife equally with himself
the wife pay R15k per month maintenance to him (this is looked at in more detail in our article on spousal maintenance claims)

The 3 factors mentioned in 9(1) were considered by the court in relation to the evidence submitted:

Duration of marriage : TS and MLS had been married for 25 years.
Substantial misconduct: The wife cited an assault by the husband in 2006 that caused partial paralysis to her right hand.
Circumstances diving rise to irretrievable breakdown of marriage: As the assault was 16 years before she issued a divorce summons against the husband, the court said that the assault "cannot be said to be the immediate cause of the breakdown of the marriage, but may be considered a contributory factor." The court said that matters were made worse for the wife by the fact that she didn't refer to the paralysis of her hand in the particulars fo claim.

There were also various issues raised in the particulars of claim (e.g. that the husband had attempted to murder the wife and he had abused her financially), which were never put to the Defendant in cross examination, so the allegation was not tested. It is critical that accurate claims are made by a plaintiff in the particulars of claim, and that the defendant is cross-examined on them, so that the court will accept them as properly tested facts.

Whilst it was common cause that the husband had been involved in an extramarital affair, the judge said that there was "no evidence on record which establishes that the extra marital relationship is substantial misconduct on the part of the Defendant."

The court ruled that the order for forfeiture be dismissed, that the joint estate be divided equally, and the defendant's claim for spousal maintenance be dismissed; as substantial misconduct was not proven.

Wife in bridal outfit in court with husband and a pile of money between them

JW v SW 2011 : equal division of joint estate ordered

A 2011 case 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.

Forfeiture of benefits of marriage in community of property

Evidence must be presented & cross-examined

TS vs MLS 2024 : equal division of joint estate ordered

JW v SW 2011 : equal division of joint estate ordered

Divorce Act : Forfeiture of patrimonial benefits of marriage

Other divorce-related articles

At the beginning

Psychological issues

Child-related divorce matters

Annexure A

Custody of children upon divorce

Child custody post divorce

Maintenance for children

Maintenance for spouse

Abduction & kidnapping of children

International divorces, children & overseas issues

Other child-divorce matters

Affairs

Assets/debt and divorce

Divorce & pension fund assets

Property and divorce

Life insurance, death & divorce

Divorce & future expenses

Marriage (COP vs ANC), cohabition and Universal partnerships

Divorce orders

Perjury & forgery

Divorce courts

Annulment instead of divorce

Family, Estate & notarial legal services

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