INTRODUCTION
Individuals enter into marriages (civil marriages, customary marriages and civil unions) for a number of different reasons. For example, some enter into marriages for love, camaraderie, the aspiration to build families and/ or social security to ensure financially stable households, while some individuals just enter into marriages solely for financial benefit.
In light of this, there is a need for the South African justice system to protect the genuine and innocent individuals from any marital misconduct from their partners at the end of the marriage. Concurrently, the South African justice system ought to ensure that no individual and/ or partner, benefits from a marriage that he or she has wrecked through marital misconduct at the expense of another.
THE PURPOSE OF FORFEITURE
Section 9 of the Divorce Act 70 of 1979 (hereinafter referred to as the Act), provides for forfeiture of patrimonial benefits. A spouse will forfeit a benefit if, in relation to the other spouse, he or she will unduly benefit if an order of forfeiture is not made.
A patrimonial benefit is one that accrues to a party because of the marriage, thus excluding what a party has contributed to the marriage. As a result, a person cannot forfeit what he or she contributed to the marriage.
SECTION 9 OF THE DIVORCE ACT 70 OF 1979 (THE “ACT”)
Section 9 of the Act states that when decree of divorce is granted on the ground of 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 of forfeiture is not made, the one party will in relation to the other be unduly benefited.[1]
In laymen’s term, this section simply means a court is empowered to order partial or complete forfeiture of patrimonial benefits having regard to the duration of the marriage, circumstances which gave rise to the break-down and any substantial misconduct on the part of either of the parties.
Forfeiture of benefits in divorce proceedings refers to the legal mechanism that allows a court to deny one party any financial benefits from the marriage if deemed unjust. This may include property, pension interests, or any other assets accumulated during the marriage.
DIVORCE AND FORFEITURE
In South Africa, there are three matrimonial property systems as stipulated by the Matrimonial Property Act, namely, marriage in community of property, marriage out of community of property with accrual, and marriage out of community of property without accrual.
The general rules are that where a marriage is in community of property, the spouses share equally in the joint estate. In the accrual system, the spouse whose estate shows a smaller accrual or growth acquires a right to claim from the spouse whose estate shows the most accrual.[2] If the parties exclude the accrual system, the general rule is that they are not entitled to a share in the estate of the other. However, despite the exclusion of the accrual, parties may still voluntarily benefit each other in the form of a spousal donation in the antenuptial contract or in a will. A spouse may also benefit through intestate succession if the deceased spouse died without a will.[3]
However, section 9 of the Act, where applicable, negates the general rules above. Parties who are married in community of property may not necessarily share equally in the joint estate.[4] The court may order that a blameworthy spouse forfeit the patrimonial benefit to which he or she may be entitled by virtue of the chosen matrimonial property systems referred to herein.[5]
UNDUE BENEFIT
There are two forms of contribution in a marriage, most common are financial and non-financial contributions. By financial we mean of money and/ or payments, and of a non-financial nature we would mean anything else, such as childcare, homemaking and generally looking after elderly relatives and discharging household duties (cooking, cleaning, and so on).[6]
Undue Benefit is a benefit (being property subject to the joint estate) accruing to a person whose conduct does not justify such a person receiving such a benefit.[7] In Molapo v Molapo, the court held that undue could be described as disturbingly unfair.[8] Undue benefit refers to something that one acquires in the absence of a legal or moral entitlement. For example, an unfaithful spouse is not morally entitled to any benefit of the marriage. Equally, a spouse who kills another ought not to benefit from the estate. Otherwise, such will constitute an undue benefit. A spouse who fails to contribute to the estate in circumstances where he or she can contribute should also not benefit.[9] The concept of a contribution must be interpreted to include both monetary and non-monetary contribution as envisaged in Beaumont v Beaumont.[10] In order for a court to make a proper determination of whether a benefit is undue, the nature and extent of the benefit must be proved before it.
FACTORS TO BE CONSIDERED TO DETERMINE UNDUE BENEFIT
Despite the absence of clarity on what is meant by undue benefit, it is clear that the question of whether a person has unduly benefited must be determined having regard to these three factors, namely, the duration of the marriage, the circumstances that gave rise to the break-down, and any substantial misconduct on the part of either of the spouses.[11] In Singh v Singh, the court noted (with authority) that two of the three factors show the lingering influence of the guilt or fault principle.[12] These three factors need not all be present[13] and none of these factors should be considered as ranking above others.[14] In T v R, the court awarded partial forfeiture -relying solely on the short duration of the marriage, which marriage had only lasted for 20 months.
A court may not look beyond these three factors. In Wijker v Wijker,[15] the trial court had regard to fairness. The Appellate Division disagreed with this approach and held that section 9(1) of the Act could not be used to depart from the consequences of the parties’ chosen matrimonial property system just because the court considers it fair and just to do so.[16] Therefore, the court is confined only to the factors listed in the section. Beyond that, the court has no competency.[17]
THE APPLICATION OF THE FACTORS
The manner in which the factors are to be applied is now settled law. Though not voluminous, the literature on these factors is rich. Initially it was thought that the factors were to be applied cumulatively.[18] In other words, the thinking was that in order to succeed in an application for an order of forfeiture, a spouse was required to allege and prove all the factors.[19]
- DURATION OF THE MARRIAGE
The court may consider the duration of the marriage. In Singh v Singh, the court held that this is the only morally neutral factor that a court may have to consider.[20] Furthermore, this is the only factor that serves as a reminder that our divorce jurisprudence has, to a certain extent, moved away from the fault system. It is accepted that where a marriage has been of a long duration, a court is less likely to grant an order of forfeiture. The reason for this is because it is highly probable that both the spouses have made contributions to the joint estate or the growth of the estate of the other. A shorter marriage increases the chances of the court granting a forfeiture order.[21]
That being said, it must be asked as to what constitutes a short or long marriage? In T v R, the court accepted that 20 months was a short duration.[22] In JW v SW, 17 years was regarded as a long duration.[23] In an earlier decision in Botha v Botha,[24] the Supreme Court of Appeal seems to have accepted that 10 years was a short, but not very short duration.[25] In arriving at this decision, the court took into consideration that the parties were in their twenties when they married and that had their marriage endured, they would have been married for a very long period.
Ten years may not be very long but it is certainly not short. Many things may happen in 10 years. For instance, a child may be born of the marriage and that child may progress as far as the third or fourth grade of their school career. Perhaps the solution lies in ascertaining the average duration of marriages in South Africa. If a marriage reaches and exceeds the average duration, it should be regarded as a long marriage for the purposes of section 9.[26]
- THE CIRCUMSTANCES GIVING RISE TO THE BREAKDOWN OF THE MARRIAGE
There are a number of reasons that could lead to an irretrievable breakdown of a marriage. In Wijker v Wijker, the breakdown was caused by the respondent’s refusal to return shares to the appellant and the appellant’s unrelenting demand thereof.[27]
In JW v SW, the marriage broke down because of physical abuse by the husband.[28] In Botha v Botha, the cause of the breakdown was the meddling of the defendant’s family in the marriage.[29] In Molapo v Molapo, the defendant attempted to burn down the family home, assaulted the plaintiff, and failed to take care of the family.[30] In T v R, the marriage broke down because the parties were constantly away from home on account of employment.[31]
Section 9(1) of the Act requires the courts to have regard to the reason for the breakdown of the marriage. Once the reason has been established, the court must decide whether that reason is sufficiently serious to justify an order of forfeiture. The court may not make an order of forfeiture citing the reason for the breakdown of the marriage if this reason does not establish blameworthiness on the part of the defendant. This approach was adopted in Wijker v Wijker, Botha v Botha and T v R. If the reason for the breakdown is so serious that it renders any benefit given to the defendant undue, then the court must make an order of forfeiture. This approach was followed in JW v SW and Molapo v Molapo. If the reason for the breakdown is not so serious that it renders any benefit given to the defendant undue, the court may not make an order of forfeiture. The reason for the breakdown of the marriage is important and is central to the decision to award forfeiture. In this regard, the provision cannot be faulted.[32]
- ANY SUBSTANTIAL MISCONDUCT
While fault no longer plays a part in arriving at a decision about whether to grant a decree of divorce, remnants of the fault principle clearly lingered in section 9 of the Act. Misconduct in this context includes marital fault. Marital fault includes adultery, imprisonment and malicious desertion.[33] The concept of substantial misconduct is wider than marital fault. It goes on to include issues such as assault,[34] late-coming, socialising, lack of intimacy, burning of wedding photographs,[35] and financial deprivation.[36] However, substantial misconduct does not include a single or isolated occasion.[37] Moreover, the mere existence of substantial misconduct does not, on its own, justify an order of forfeiture.[38]
The above does not suggest that in addition to proving substantial misconduct, the plaintiff must prove any of the other factors in section 9 of the Act. As has been pointed out above, it is trite in our law that the plaintiff does not have to prove all the factors in section 9. However, what must be proved is that as a result of the substantial misconduct, the defendant will be unduly benefited.[39] In JW v SW, the plaintiff managed to prove substantial misconduct in the form of an assault.[40] However, the court held this did not justify an order of forfeiture, because the defendant had contributed more than the plaintiff.[41] A person cannot forfeit what they brought into the marriage.[42]
Misconduct still does and should continue to play an important role in forfeiture. Although fault is no longer a requirement for a divorce, it is difficult to think of the application of forfeiture provisions without the question of fault. In this regard, the provision also cannot be faulted.
FORFEITURE AND DISSOLUTION OF A MARRIAGE THROUGH DEATH
It is clear from section 9(1) of the Act that the power of a court to order the forfeiture of benefits arises only as an adjunct to a decree of divorce. Moreover, a claim for the forfeiture of benefits can only be made by one party to a marriage against the other in divorce proceedings. It is not open to an outsider to claim that relief.[43]
CONCLUSION
Although parties can marry in community of property (with the aim of sharing equally in the joint estate), out of community of property (wherein one party is not entitled to share in the estate of the other) or out of community of property with accrual (the spouse whose estate shows a smaller accrual or growth acquires a right to claim from the spouse whose estate shows the most accrual), it is important for people to note that a court of law has the discretion to alter the proportion of the estate that spouses may share, despite what the marriage contract says. A court can, after granting a decree of divorce, decide whether or not to grant a forfeiture of patrimonial benefits order having regard to the circumstances of the particular case, the nature of the evidence led and the facts proven before the court. If you need assistance regarding your divorce matter, please do not hesitate to contact our legal experts at Tshaya Mashabela Attorneys.
Authors: Tumelo Mashabela |Director and Bonga Dlulisa |Associate
Tshaya Mashabela Attorneys
[1] Divorce Act 70 Of 1979
[2] MC v JC. 2016 (2) SA 227 (GP)
[3] https://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1682-58532022000200004
[4] Barratt, Domingo, Amien, Denson, Mahler-Coetzee, Olivier, Osman, Schoeman and Singh Law of Persons and the Family 2ed (2017) 347
[5] Heaton and Kruger South African Family Law 4ed (2016) 136
[6] https://www.saflii.org/za/cases/ZACC/2023/32.pdf
[7] Marumoagae 2014 De Jure 98
[8] Molapo v Molapo supra par 22.13.
[9] https://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1682-58532022000200004
[10] Beaumont v Beaumont 1987 (1) SA 967 (A)
[11] See Klerck v Klerck 1991 (1) SA 265 (W) 266A-B. Note that this judgment is written in Afrikaans, but the headnote is very helpful. See, also, Barratt et al Law of Persons 349
[13] See headnote in Klerck v Klerck supra 265J and Binda v Binda 1993 (2) SA 123 (W).
[14] See Wijker v Wijker supra 728-729. In this appeal decision, counsel for the appellant argued that the court could not make an order of forfeiture without a finding of “substantial misconduct”. By so doing, counsel had sought to put “substantial misconduct” above other factors. The court rejected this argument.
[15] Supra 18
[16] Wijker v Wijker supra 727
[17] https://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1682-58532022000200004
[18] Matyila v Matyila 1987 (3) SA 230 (W) 234G
[19] Matyila v Matyila supra 234G
[20] Singh v Singh supra 788F-G.
[21] https://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1682-58532022000200004
[22] T v R supra par 20.18
[23] JW v SW supra par 17
[24] 2006 (4) SA 144 (SCA).
[25] Botha v Botha supra par 13.
[26] https://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1682-58532022000200004
[27] Wijker v Wijker supra par 31-32
[28] JW v SW supra par 28
[29] Botha v Botha supra par 14-15
[30] Molapo v Molapo supra par 24.3.
[31] T v R supra par 20.2-20.5.
[32] https://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1682-58532022000200004#back_fn97
[33] Barratt et al Law of Persons 334
[34] JW v SW supra 550G
[35] T v R supra par 20.6.
[36] Molapo v Molapo
[37] T v R supra par 20.6.
[38] JW v SW supra 550H
[39] https://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1682-58532022000200004#back_fn105
[40] JW v SW supra 550G.
[41] JW v SW supra 550I.
[42] https://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1682-58532022000200004#back_fn107
[43] Monyepao v Ledwaba supra par 21.
