Zelda Venter
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 who is guilty of “substantial misconduct” such as adultery should be punished in this manner has come under the spotlight in the high court in Pretoria.
The case of an Mpumalanga couple who divorced after 26 years of marriage because the woman had several affairs, among other reasons, sparked a closer look at whether Section 9 of the Divorce Act was outdated.
A magistrate earlier ruled that the woman had 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 against the order.
According to Section 9 of the Divorce Act, the court can make an order that the patrimonial benefits of marriage be forfeited by one party, in favour of the other, either wholly or in part, if the misconduct of one of the parties led to the divorce.
The husband in this case complained that his wife had adulterous relationships during their marriage. This, he said, frustrated their children and caused the family emotional suffering.
Acting Judge Ishmael Semenya said the magistrate, acting in accordance with Section 9 of the Divorce Act, correctly found that the woman was indeed guilty of misconduct.
The judge, however, said this was not the sole cause of the break-up. He found that the husband had “reluctantly” agreed that he had rejected his wife’s efforts to reconcile.
The judge said it was seldom the case that a marriage would break down solely due to the conduct of one party.
Judge Semenya referred to the evidence presented by the man, in which he admitted that 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 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.
He said the finding by the magistrate – that the woman would unfairly benefit from their marital estate if he did not order a portion of it to be 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.
Counsel acting for the woman argued that Section 9 was “wholly outdated” in the constitutional context, as it was aimed at punishing a party.
Judge Semenya has allowed the woman to take this issue further in another legal challenge which, if the court finds that this section was outdated, would benefit her regarding the order made by the magistrate. The court ruled that the Minister of Correctional Services and Justice and the Speaker of Parliament should be added as parties to this application.