Opinion - When spouses are married in community of property, their assets are joined together to form the joint community of property estate.
When the parties get divorced, their assets must be divided.
In most cases the parties would either immediately or after lengthy litigation agree on the division of the joint estate, which is often reduced to writing in the form of a settlement agreement.
In the instances where no agreement can be reached, either party may apply to the court to have a receiver or liquidator appointed to divide the assets of the joint estate.
However, there are certain instances where a party may seek more than a division of the joint estate.
A party that has contributed more to the joint estate may seek an order of forfeiture of benefits of the marriage in community of property if there are compelling reasons to do so.
Section 9 (1) of the Divorce Act reads: “When a decree of divorce is granted on the grounds of the irretrievable break-down of a marriage, the court 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 court, having regard to the duration of the marriage, the circumstances which gave rise to the break-down thereof and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefited.”
It is clear from the Act that the court may only grant an order for forfeiture of benefits when there is an irretrievable breakdown of the marriage.
The court is obliged to consider only the following in making its decision:
* The duration of the marriage.
* The circumstances which give rise to the breakdown of the marriage.
* Any substantial misconduct on the part of either of the parties.
A good example of when the court will grant a forfeiture order: Assume there is a young male gym instructor with no assets.
He meets an older widow at the gym whose husband has left her a fortune.
After a whirlwind romance of one week, they get married in community of property.
A short while later, the husband reverts to his clubbing ways and reacquaints himself with paramours from his past, spending most evenings away from home.
When he is challenged by his wife, he resorts to physical and emotional abuse and simply makes the wife’s life unbearable.
The woman, in this circumstance, can apply for an order for forfeiture of benefits based on the duration of the marriage, the circumstance that led to the breakdown and the misconduct on the part of her husband.
It is clear that if an order for forfeiture is not made, the husband will be unduly benefited of half the estate to the detriment of the wife.
An order for forfeiture of benefits is often sought by one party, who is trying to "get back" at another party in divorce proceedings.
It would be really surprising if such a party would be successful.
The courts will not grant the order simply because it seems fair or based on the fact that one party contributed more to the joint estate than the other.
In order to prove forfeiture of benefits, the party alleging that the other party will be unduly benefited must show that more than 50% of the joint estate emanated from his or her contribution.
Parties claiming forfeiture based on emotions rather than valid grounds prevent a speedy settlement of the divorce action and burden themselves with huge legal bills.
An order for forfeiture of benefits in modern day divorce is the exception and not the norm.