Forfeiture of Patrimonial Assets in terms of Section 9 of the Divorce Act & Upholding the Sanctity of the Contract

In a recent decision handed down in the Johannesburg High Court, N v N (Case No.: 9417/2019), a husband’s claim that his wife should forfeit her share of the joint estate was dismissed and with good reason.

The Wife in this matter had sued for a decree of divorce, together with division of the joint estate. The Husband on the other hand sought an order for forfeiture against his wife as regards his pension interest and the Wife’s share in the immovable property.

As the parties were married in community of property, the duty rested on the Husband to prove his claim for forfeiture. However during evidence it was revealed that:

1. The Husband’s claims of excessive gambling on the part of his Wife were not proved;
2. The Wife was able to establish that she contributed toward the care and maintenance of the parties children;
3. The Wife contributed to the joint estate when she was employed;
4. The Husband was well aware that his Wife was undergoing chemotherapy treatment, following her cancer diagnosis, which he claimed to have no knowledge of, despite paying for his wife to obtain treatment.

As a result, an order for division was granted, as no substantial misconduct was proved by the Husband against the Wife.

Conversely in the unreported matter of CMM v AMSM (Case No.: 13966 / 2020), of the Pretoria High Court, Judge Makhoba awarded forfeiture of certain assets against the estranged Wife. The Court found that:

1. The parties were effectively only together for a period of two years between 2009 and 2011;
2. Two children were born of the marriage between the parties during these years;
3. Shortly after their marriage, the Wife enrolled and stayed at a nursing school, which details she refused to share with the Husband;
4. The Wife would habitually leave the matrimonial home with another unknown male and not return home for months at a time;
5. The Wife only returned to the matrimonial home five (3) times during 2014 and three (3) times during 2014;
6. During a return trip in 2014, the Wife returned with a child fathered by another man, and again refused to divulge any information regarding the child or her whereabouts to the Husband;
7. Only the Husband contributed towards the care and maintenance of the parties children, with assistance from his parents, to which the Wife did not contribute;
8. The Wife’s alleged that the breakdown of the marriage was a result of the Husband’s refusal to engage intimately with her. While the Husband contended that his refusal stemmed from his Wife’s adulterous actions with other men.

The Court held that the Wife’s evidence was inconsistent and unreliable. Furthermore, the evidence revealed that the Wife did not contribute towards the joint estate, therefore she could hardly forfeit what she had no part in building. Any and all contributions towards the joint estate were made by the Husband alone, who effectively built the joint estate and raised the parties children on his own.

The Court therefore awarded forfeiture against the Wife, ordering that she would forfeit her share in the Husband’s pension fund scheme as well as her share of the matrimonial home, to which she did not contribute.

The issue of Forfeiture has been canvassed throughout the years in various cases, most notably in the matter of Wijker v Wijker 1993 ZASCA 101, where the SCA overturned the decision of the Trial Court and laid out the steps to determine whether or not forfeiture should be granted:

‘’…the first step is to determine whether or not the party against whom the order is sought will in fact be benefited. That will be purely a factual issue. Once that has been established the trial court must determine, having regard to the factors mentioned in the section, whether or not that party will in relation to the other be unduly benefited if a forfeiture order is not made. Although the second determination is a value judgment, it is made by the trial court after having considered the facts falling within the compass of the three factors mentioned in the section.’’

These three factors are set out in Section 9(1) of the Divorce Act 79 of 1970 which reads as follows:

‘’When a decree of divorce is granted on the ground of the irretrievable break-down of a marriage the court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part, if the court, having regard to the duration of the marriage, the circumstances which gave rise to the break-down thereof and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefited.”

1. Duration

Although duration has been listed as a factor, there is no duration ‘’timeline’’ to define what would be considered by the Court to be a marriage of ‘’lengthy duration” as opposed to a ‘’short duration’’.

While each matter must be decided on its own merits, case law suggests that where a marriage is determined to be of a short duration, then forfeiture may be granted. The reasoning applied is that a short duration is more likely to lead to an undue and disproportionate benefit being given to the spouse who may not have contributed much during that duration.

This was the situation in KT v MR 2017 (1) SA 97 GP, where the Court found the parties were married for a period of only 20 months, wherein they hardly spent time together due to demanding work schedules. Furthermore, the husband had built up an extensive estate prior to the marriage which he continued to grow during the brief marriage without any contribution from his wife. Partial forfeiture of the assets was granted against the wife to avoid this disproportionate benefit.

Conversely, with a marriage of a longer duration, a Court may be less inclined to grant forfeiture of the joint assets.

2. Circumstances regarding the Break-Down of the Marriage

The reasons why a married couple decide to seek a divorce are not only numerous but also varied, in addition to being specific to that couple and/or situation. However, the reasons for the breakdown which are always submitted by both litigating spouses in their pleadings, are usually just denied by each party. The duty rests on the party seeking to enforce forfeiture, to show the Court that the breakdown of the marriage was as a result of the conduct and/or behaviour of the other party.

In the event that this duty is not discharged, then a Court is likely to find that the breakdown of the marriage must be shared by the parties. In the case of Beaumont v Beaumont 1987 (1) SA (A), it was held that in many and in fact most cases, blame will be attributable to both parties as both parties are likely to have contributed to the breakdown of the marriage.

3. Substantial Misconduct by Either Party

This factor seems to the most relied upon by a party seeking forfeiture of patrimonial benefits. Often parties use the same elements that lead to the breakdown of the marriage to allege substantial misconduct.

However, it must be understand that ‘’substantial’’ misconduct as required by Section 9(1) of the Divorce Act, is not the same as ‘’misconduct’’ set on Section 7 of the Act as regards a maintenance claim.

Clearly the misconduct, in terms of forfeiture, must be that which ‘’must be so obvious and gross that it would be repugnant to justice to let the guilty spouse get away with the spoils of the marriage’’, as set out in V v V (3389/2017) 2020 ZAGPPHC 154.

In this matter the Court held that merely owning or acquiring an asset and then making a bald averment that the other party would be unduly benefitted, without proof of the alleged undue benefit, does not discharge the onus of proving that the other party should not be able to benefit from division of the joint estate.

In fact case law has suggested that our Courts are of the view that the sanctity of the contract, entered into between two spouses, should be upheld. The parties at the time of entering their marriage:

1. were aware of the implication of being married in community of property would mean that all the property, both movable and immovable will form part of the joint estate and;

2. that notwithstanding this awareness, the parties still proceed to marry in community of property, knowing that both parties will become owners of the undivided half share in all the assets of the joint estate, irrespective of the contribution made either party.

This is the inevitable consequence of marriage in community of property as set out in Englebrecht v Englebrecht 1989 (1) SA 597 (C), which holds that ‘’Joint ownership of another person’s property is a right which each of the spouses acquires on concluding a marriage in community of property.’’

In all the case law cited herein, forfeiture, is not readily granted. Each case must be decided on its own merits. It is clear that our Courts seek to continuously reinforce that parties are still bound by the matrimonial regime they chose when they married and that such an agreement remains in force and effect, unless one can prove misconduct of a spouse on the magnified scale as required by our Courts.