Factors behind forfeiture of assets in divorce

Shani van Niekerk Adams & Adams

In most divorces,one of or both theparties feels wronged andaggrieved by either having toshare their assets or having any assets included in thecalculation of the accrual.

The Pretoriahigh court recentlyruledthatawoman’s infidelity amountedto substantial misconductand, as such,sheforfeitedherrightto share inher husband’s pension fund.The judgment received extensivemedia coverage, anddivorce attorneys are nowinundated with queries regarding forfeiture.

It is quitecorrect that our lawallowsacourttomakean orderthat onepartyforfeits thepatrimonial benefitsofa marriage.This meansthata specific assetor evenall benefits canbe forfeited, regardless of the content of the parties’ antenuptial agreement.Thislegalposition is,however, nothingnewand has existed for years.

Prior to the introduction of theDivorce Act,aforfeiture orderwas basedonthe principlethat noone oughtto benefit financiallyfrom a marriage that he/she wrecked. Underour current Divorce Act,conduct ofthe partiesis onlyone ofthe factors acourt willconsider whendeciding togrant afor-

THE FACT YOUR SPOUSE ENGAGED IN AN EXTRAMARITAL AFFAIR DOES NOT SIMPLY RESULT IN FORFEITURE feiture order.

Intermsofsection9ofthe DivorceAct, acourtmay makean orderthatthe patrimonial benefitsof the marriagebe forfeitedbyone partyinfavour oftheother, eitherwholly orinpart, ifthe court,having regardtothe duration ofthe marriage,the circumstances which gave rise tothe breakdown and any substantialmisconduct onthe partofeither ofthe parties,issatisfied that,ifthe order for forfeitureis not made,the oneparty willin relationto theotherbe unduly benefited.

The law doesnot favour eithera manora woman any spousecan claimforfeiture.It should,however,be kept in mind that each matter willbeconsidered onitsown merit. Thefact thatyour spouse engaged inan extramaritalaffair doesnotsimply resultin forfeiture.Thecourt willtakeinto accountall the factors that ledto the breakdown ofthe marriage, whether it resultedin substantial misconduct,as well asthe durationof themarriage.Thecourtmaywellfind that the infidelitywas merely a symptom of a poor marital relationship, which was actually the causeof the divorcerather thantheinfidelity itself.

In arecent appealcase (M

V M) theappellant’s appeal fora forfeitureof assetswas dismissed. Thecourt, inter alia, found that theonus is on thepartywho seeksaforfeitureordertoprovethenature and the ambit of the benefit to beforfeited.Aforfeitureorder is not simply forthe taking. A claim mustbe properly pleaded and proved.