We’re unpacking the issues around divorce in our #dignifieddivorce series, to help parents navigate the legal and emotional implications of such a separation. This reader wrote in with a tricky question, and we reached out to legal experts for advice.
I read your article on Parent24 this morning and find it quite interesting.
I’ve been married for twenty-five years and out of that my husband’s only worked for +- ten years, he’s been home for the past five years and makes no effort to look for work.
We are married in community of property, now if I should file for divorce is he liable to get half of everything? We have a disabled 20-year-old daughter who is in our care.
I really don’t want to lose my house.
Must read: What are the grounds for divorce in South Africa?
All assets and liabilities form part of a joint estate
Deborah Di Siena of Di Siena Attorneys provided a comprehensive answer to this concerned readers question.
When couples are married in community of property, it means that all assets and liabilities brought into the marriage and accumulated during the marriage form part of the joint estate, in other words, there is only one estate.
In terms of our law, when one party files for divorce the joint estate (i.e. assets and liabilities) is split equally between the parties.
Where couples cannot reach an agreement on how to divide their joint estate (as often happens), the court will usually appoint a receiver or liquidator to divide the assets of the joint estate.
The Divorce Act does, however, provide that one of the parties can apply for a forfeiture of patrimonial benefits.
The party who forfeits, may in the end lose his or her rights to a fifty per cent share of the joint estate or may only be awarded a smaller share of the estate than the other party.
There are three factors that a court will consider when deciding whether to grant a forfeiture. These are:-
- The duration of the marriage;
- The circumstances which led to the breakdown of the marriage; and
- Whether there was any substantial misconduct on the part of one of the parties.
Also read: Can you get a divorce without your spouse’s consent?
A failure to contribute financially is also a factor in determining whether forfeiture should be allowed or not
In a recent case judgement, of KT v MR, the parties were married in community of property for 20 months whereafter they no longer lived together as husband and wife.
The judge in this matter stated that the longer the duration of the marriage the more likely it was that the benefit on dissolution would be due and proportionate, and, conversely, the shorter the duration of the marriage the more likely the benefit would be undue and disproportionate.
The judge went further to state that this did not amount to a rigid and mechanical exercise, as the court is enjoined to make a value judgment.
Given the circumstances that lead to the breakdown of the parties marriage and the duration of the marriage, the judge granted a partial forfeiture of benefits, which means that one party forfeited their right to claim 50% of certain assets of the joint estate.
Your position is slightly different in that your marriage is of a long duration. Accordingly, the court will take into account all the factors which led up to the breakdown of the marriage and whether there was any substantial misconduct on the part of your husband.
The court has a discretion and could possibly order that he forfeits all or a part of the joint estate. Each case is different and we suggest you contact an attorney for advice.
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