South Africa's Family Law Has Entered A New Era Following A Momentous Judgment On The Forfeiture Of Patrimonial Benefits

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Barnard Inc.

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The default position of a marriage in South Africa is "in community of property" – also candidly described as, "what's mine, is yours". In other words, a joint estate forms between the spouses...
South Africa Family and Matrimonial
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What are the remedies, requirements and legal principles for a spouse to claim forfeiture during a divorce?

The default position of a marriage in South Africa is "in community of property" – also candidly described as, "what's mine, is yours". In other words, a joint estate forms between the spouses and when they get divorced the joint estate needs to be divided equally between them.

However, there are exceptions to this principle. A spouse can, during a divorce, claim that the other party forfeits their fifty percent claim on the joint estate or a portion thereof. To claim for forfeiture, the Court must be satisfied that if forfeiture is not granted the one party will be unduly benefited. The burden of proof for a forfeiture claim is very high. The Court will take the following factors into consideration when presented with a forfeiture claim:

  1. The duration of the marriage;
  2. The circumstances which gave rise to the break-down of the marriage;
  3. Any substantial misconduct of either of the parties.

For a Court to grant forfeiture, the Court must be satisfied that the one party is "guilty" of some form of gross misconduct. This takes many forms, and each matter needs to be considered individually.

As evidenced by the proliferation of Family Law-related articles in the media recently, South Africa's Family Law is being tested and is evolving. The Courts are not shying away from making difficult decisions – a step in the right direction.

A recent judgment granted by the Pretoria High Court, received a great deal of attention. In this case, the parties were married in community of property. The wife – who claimed forfeiture – had relocated to Germany after accepting a great job opportunity. Her husband refused to relocate and remained in South Africa, in their house for which she paid. His only contribution in this time was to pay for the electricity. When he received his pension fund, he did not share any of the money with his wife.

During arguments, there were allegations of infidelity from both parties. However, the wife did not rely on infidelity as her main argument for forfeiture. Her argument was based on the fact that her husband had not contributed towards the household and would unduly benefit if he received half of the joint estate, which included her pension fund.

The Court ruled in favour of the wife and the husband forfeited his portion of the joint estate, since he did not contribute towards the household.

Even though a claim for forfeiture is difficult to prove, the public should be aware of this remedy in our law and their right to utilise it. The judgment opens the door for parties who are in a position where their spouses have failed to contribute anything towards their joint estate, to avoid being prejudiced by the default position of a marriage in community of property.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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