Introduction

During the pandemic, there was a rise in divorces not only in South Africa but also worldwide. Divorce is a difficult proceeding because a family is torn apart, and the aggrieved parties are upset, and grieving for this loss. Parties to a divorce usually never want to amicably separate, they want to fight for what is theirs and by theirs, it is not their significant other but their actual property.

What happens when you are married in a community of property and you obtain an obscene amount of money and you decide to institute divorce proceedings after one year of marriage. This article will look at whether benefits in a marriage in community of property can be forfeited.

When is the forfeiture applicable?

Forfeiture of patrimonial benefits is regulated by Section 9(1) of the Divorce Act 70 of 1979 which provides that forfeiture of patrimonial benefits of the marriage will occur when the divorce decree is granted on the ground of irretrievable breakdown of the marriage. The courts would consider the following factors:

• The duration of the marriage; There are no legislative guidance or requirements which set out exactly how long the marriage should or should not be. Courts will review each matter on a case by case basis, taking into consideration the merits and applying their discretion to determine if the length of the marriage supports the forfeiture claim. 
• The circumstances leading up to the breakdown of the marriage; The Divorce Act lists various factors that could contribute to the breakdown of the marriage. It is important to note that not one factor holds more weight than the other. Failure to contribute financially to the joint estate is for example a factor which contributes to the success of forfeiture.  Any reasonable factor contributing to the divorce, being in itself or in conjunction with other factors, assist courts to grant the order.
• Any substantial misconduct by one or both parties, if applicable; Although fault in it is self is no longer a ground for divorce, courts still have a duty to consider it. The misconduct would have to be so substantial that it convinces the courts to grant the order. Substantial misconduct does not in itself justify an order for forfeiture, however, it may contribute to the same.  Courts seek to protect vulnerable parties in divorces, especially women. Forfeiture of benefits may not be used as a method of revenge or baton for punishment towards the other party. The division of assets has to be fair and reasonable and in accordance when relying on substantial misconduct the severity and nature of the misconduct will be assessed by the Court to ensure that it is a legitimate reason for the divorce.

The Court in Wijker v Wijker 1993 4 SA 720 (A ) held that all three factors don’t need to be present when seeking an order for forfeiture.

What are the benefits that will be forfeited?

Often this claim is raised in pension interests cases which include pension and provident funds, retirement annuity, and preservation funds. Section 9(1) of the Divorce Act uses the term patrimonial benefits, meaning that all the assets which would have been acquired during the course of the marriage would be forfeited.

Do you have to share the joint estate in a marriage in a community of property? 

The short answer to this question is not necessarily. When a person claims that there must be a forfeiture of benefits they must be able to prove that when the forfeiture is granted it will not unduly deprive the other party. The person would need to also prove their claim, they cannot just allege infidelity. Courts have provided that because the duration of the marriage is short it does not automatically guarantee that the forfeiture will be granted, it is merely a factor that courts would consider. For instance, if A marries at the age of 45 after accumulating a large pension fund together with two properties.  Her marriage is in a community of property. She decides to institute divorce proceedings after two years of marriage to her husband. A would have to prove one of the factors mentioned above and not just merely allege them. 

What happens once a forfeiture is applied?

Should applying the forfeiture prove to be successful and it is granted by the court, the spouse that would have unduly benefited will not receive part or whole of the patrimonial benefits of the marriage.