Protecting against unjust enrichment
Section 9 of the Matrimonial Property Act 88 of 1984 empowers a court to order forfeiture of the accrual share where one party would unduly benefit from the application of the accrual system.
This relief is not granted automatically. The applicant must prove that the ordinary application of the accrual system would result in unjust enrichment or inequity.
Legal Test for Forfeiture
The court will consider:
- The duration of the marriage;
- The circumstances leading to the breakdown of the marriage; and
- Any substantial misconduct or imbalance in contributions.
Application in Practice
In the Barnard matter:
The wife made substantial financial contributions, including bond payments and household expenses;
- The husband's estate showed little or no growth;
- The minor children remain financially dependent on the wife.
Under these circumstances, the wife seeks forfeiture of the husband's accrual share to avoid rewarding his lack of financial contribution.
Evidence Required
- Detailed account of each spouse's estate growth;
- Proof of income, liabilities, and expenditure over the course of the marriage;
- Financial support provided to the children;
Documentation of the non-contributing spouse's conduct.
A Combined Strategy: Forfeiture and Actio Communi Dividundo
Where forfeiture is not granted, a spouse may seek alternative relief through actio communi dividundo to terminate co-ownership and access capital.
This two-fold approach ensures that:
- Unjust enrichment is prevented through forfeiture;
- Co-ownership is dissolved through court-supervised division, if necessary.
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.
