Pretoria - Should a cheating husband or wife be punished in the event of a divorce by way of forfeiting marital benefits?
The question of whether a spouse guilty of “substantial misconduct” such as adultery should be punished has come under the spotlight in the high court in Pretoria.
The case of a Mpumalanga couple, who divorced after 26 years of marriage because the woman had affairs, among others, sparked a closer look at whether Section 9 of the Divorce Act was outdated.
A magistrate earlier ruled that the woman forfeited some of the financial benefits she and her husband acquired during their marriage, as she had cheated on him.
The parties were married out of community of property with an antenuptial contract that included the accrual system.
The magistrate found in favour of the husband and granted an order of partial forfeiture of marital benefits against the wife. He also ordered her to pay the costs. The woman turned to the high court to appeal the order.
Section 9 of the Divorce Act says the court can make an order that the patrimonial benefits of marriage may be forfeited by one party, in favour of the other, wholly or in part, if the misconduct of one of the parties led to the divorce. The husband complained that his wife had adulterous relationships.
Acting Judge Ishmael Semenya said the magistrate, acting in accordance with Section 9 of the Divorce Act, correctly found that the woman was guilty of misconduct. However, he said, this was not the sole cause of the break-up. He found the husband had “reluctantly” agreed that he rejected his wife’s efforts to reconcile. The judge said it was seldom that a marriage would break down solely due to the conduct of one party.
Judge Semenya referred to the evidence by the man, in which he admitted the woman was a diligent, industrious wife and mother who resigned from her work to devote her time to her children and family.
This, according to the man, allowed the family to prosper.
The judge said that, although her contribution towards the growth of her husband’s estate was not quantified, it could be inferred that she used most, if not all, of her earnings while she was employed, towards the maintenance of the household.
The magistrate’s finding – that the woman would unfairly benefit from their marital estate if he did not order a portion of it forfeited due to her misconduct – was incorrect. The judge said a party can only benefit from an asset brought into the estate by the other party, and not from his or her own asset.
The wife in this case can thus not forfeit the assets which came about as a result of her contributions.
Judge Semenya said the magistrate, in awarding a cost order against the woman, wanted to punish her for her misconduct.
He said the logic behind this section was that a spouse should not benefit financially from a marriage he or she had wrecked.
The Divorce Act of 1979 did away with “fault” as a ground for divorce.
But the Act still allowed for the forfeiture of financial benefits if a spouse committed adultery.
It appeared fault still played a role in our divorce system. The judge questioned whether “misconduct” was still relevant.
Counsel for the woman argued Section 9 was “outdated” as it was aimed at punishing a party.
Judge Semenya allowed the woman a further legal challenge.
If the court rules the section outdated, it would benefit her regarding the magistrate’s order.
The court ruled the Justice Minister and Speaker of Parliament be added as parties.
Interested parties may enter the fray as friends of the court.
Pretoria News