You are not always entitled …

2015-11-04 06:00

WHEN a decree of divorce is granted on the grounds of the irretrievable breakdown of the marriage the court, under­ Section 9 of the Divorce Act 70 of 1979, 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 marriage is subject to the accrual system, the right to share in the accrual of the estate of a spouse is a patrimonial benefit which the court may declare forfeited­, either wholly or in part in respect of Section 9 of the Matrimonial­ Property Act 88 of 1984.

Forfeiture may be claimed by either party in the divorce proceeding.

According to Section 9(1) of the Divorce Act 70 of 1979, the court will take into consideration the following factors when determining whether a forfeiture order should be granted:

• the duration of the marriage;

• the circumstances which gave rise to the breakdown of the marriage;

• any substantial misconduct on the part of either spouse, and;

• whether the one spouse will be unduly benefited if the order is not made.

Where a divorce is granted on the ground of mental illness or continuous unconsciousness, the court will not grant an order for forfeiture of benefits.

The first leg of forfeiture is for the court to establish whether one spouse will benefit if the order is not granted and thereafter the second leg is to determine whether that benefit will be one that can be called “undue”.

The court must determine the respective contributions by the spouses to the joint estate in order to decide whether one spouse will be benefited. If one spouse has contributed more than the other, the latter will benefit if forfeiture is not ordered.

Thereafter, the court must consider whether the loss of the benefits of the marriage is equitable (or whether keeping them is inequitable).

In this regard the court may only take cognisance to the matters mentioned and will finally decide whether a forfeiture order should be granted.

An undue benefit can be proved where one party continually makes the living conditions in the household intolerable by, inter alia –

• not contributing to household expenses;

• selling assets of the joint estate without the other’s consent;

• continually undermining the other spouse; and

• abusing the other spouse emotionally, verbally, financially and/or physically.

An undue benefit may also be established by proving that the other party is having an extramarital affair.

Once an order is made granting a decree of divorce between the respective parties, a party cannot approach the court again on the basis that she or he did not include a forfeiture claim against the other party­.

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