Forfeiture Of Patrimonial Benefits & Its Application In SA Divorces

Forfeiture of patrimonial benefits in a South African divorce is a remedy under section 9 of the Divorce Act 70 of 1979 that allows a court to deprive one spouse of their share of the other spouse’s estate (or of the joint estate, in an in-community marriage) where a forfeiture order would be just. The historical test focused on whether the claimant spouse proved “substantial misconduct” by the other (the old Wijnaar v Newlands line), but the current Gauteng approach — following the 2020 decision in ED v MS — asks whether the result of refusing forfeiture would be “clearly unfair,” with substantial misconduct treated as one factor rather than a threshold. Forfeiture is not automatic; it must be specifically pleaded in the divorce action, supported by a founding affidavit, and is decided by the High Court as part of the divorce trial.

What “Forfeiture of Patrimonial Benefits” Actually Means

Forfeiture is a court-ordered remedy under section 9 of the Divorce Act that can strip one spouse of their share of the other spouse’s estate (in an out-of-community accrual marriage) or of the joint estate (in an in-community of property marriage). The order is not automatic, and the available outcomes are limited:

• Full forfeiture — the other spouse’s accrual or joint-estate share is removed entirely.
• Partial forfeiture — the court awards a reduced share, reflecting the unfairness it has found on the facts.
• Dismissal of the claim — each party receives the share they would otherwise be entitled to under the marriage’s proprietary regime.

The claim must be specifically pleaded in the divorce summons or counterclaim and supported by a founding affidavit setting out the facts relied on. A general prayer for relief is not enough — the court cannot make a forfeiture order against a spouse against whom no claim has been pleaded (as the Pretoria seat of the Gauteng Division reaffirmed in P.P v P.P 2025 ZAGPPHC 900). The claim is decided by the High Court as part of the divorce trial, not by the Family Court or Magistrate’s Court, and the Family Court has no equitable jurisdiction to vary the matrimonial property regime.

Which Marriages It Applies to

Section 9 operates on the proprietary regime the parties married under. Whether a forfeiture order is even capable of being made depends, first, on what benefit is at stake:

Marriage regime	What is at stake	Can forfeiture apply?
In-community of property	Half-share of the joint estate’s growth	Yes — court can strip that share in whole or in part.
Out-of-community with accrual	Accrual claim against the other spouse’s estate (growth from date of marriage to date of divorce)	Yes — court can strip the accrual claim in whole or in part.
Out-of-community without accrual	No accrual benefit — each spouse keeps their own estate	Generally no — there is no accrual benefit to forfeit.
Customary marriage	Depends on registration and how the proprietary regime is recorded under the Recognition of Customary Marriages Act	Position depends on the facts — confirm in a consultation.

An antenuptial contract without accrual therefore generally takes the section 9 remedy off the table — there is no accrual benefit to attack. Where there is doubt about the regime (for example, an ANC that was not properly registered within the time prescribed by the Matrimonial Property Act), the parties should confirm the position before any forfeiture plea is drafted; a plea raised against a spouse who has nothing to forfeit is liable to be struck out.

The Test the Court Applies Today

The test for granting forfeiture has shifted decisively over the past several decades. South African courts now operate a two-track approach, and understanding which test applies on a given set of pleadings is the first task of any practitioner preparing a forfeiture claim.

Historical test — the Wijnaar line

Under the older authority, the spouse claiming forfeiture had to prove the other spouse was guilty of substantial misconduct — a closed catalogue that historically covered adultery, attempted murder, malicious desertion, gross cruelty, habitual drunkenness, and conduct of a similarly grave kind — and that the “innocent” spouse would otherwise be unjustly enriched. The test was criticised as over-restrictive: a spouse in a long marriage where one party’s dissipation left the estate at dissolution could be locked out of forfeiture on a technicality, and the inquiry tilted toward moral blame rather than economic fairness.

Modern test — unfairness following ED v MS 2020 ZAGPPHC 124

The Gauteng Division’s 2020 decision in ED v MS reworked the test. Substantial misconduct is no longer a threshold requirement; the court instead weighs an open list of factors and grants forfeiture only where the result of not granting it would be “clearly unfair.” This approach is treated as required by the Constitutional Court’s broader direction that the Divorce Act be interpreted to promote substantive equality between spouses rather than to reward moral blame.

The 2025 Gauteng line

Two 2025 Gauteng Division judgments sit firmly in the post-ED v MS line and confirm that the unfairness test is the operative approach:

• M.J.L v L.O.L (case 66032/2021) [2025] ZAGPPHC 331 (28 March 2025), Pretoria seat — applied section 9 to determine forfeiture on the facts of a contested divorce.
• P.P v P.P (case 067730/24) [2025] ZAGPPHC 900 (13 August 2025), Pretoria seat — confirmed the two-stage Wijker v Wijker / Engelbrecht enquiry (factual benefit, then whether that benefit is “undue”) and emphasised that section 9(1) of the Divorce Act is not to be conflated with section 15(9) of the Matrimonial Property Act. Absolution from the instance was granted where the party claiming forfeiture failed to plead or prove the nature and value of the benefit sought to be forfeited.

Factors the Court Now Weighs (Open List)

Because the unfairness test is open-textured, the court has wide discretion. The factors typically weighed are:

Factor	What the court looks at
Substantial misconduct	Still a factor — but no longer a threshold. Adultery, cruelty, desertion, financial dissipation, and the like are weighed, not used as a trigger.
Duration of the marriage	Long marriages tend to dilute the force of misconduct-based claims; short marriages put the spotlight on the accrual more directly.
Circumstances of the breakdown	How the marriage ended — desertion, irretrievable breakdown after infidelity, mutual separation — frames the unfairness inquiry.
Direct and indirect contributions to growth	The non-financial contribution (homemaking, child-rearing) and the financial contribution (income, asset-building) to the other spouse’s estate during the marriage.
Pre- or post-marriage agreements	Antenuptial contracts, postnuptial executorships, and settlement agreements that already address the issue.
Overall fairness of the accrual outcome	The bottom-line question: would refusing forfeiture produce a clearly unfair result? If not, the claim fails.

The Obiter article “Factors Justifying Forfeiture of Patrimonial Benefits” (Nelson Mandela University law journal) treats the question as an open doctrinal inquiry — there is no closed list of factors, and each matter turns on its own facts. This open-ended structure is one reason why the cost of a forfeiture claim can escalate quickly, and why a candid early conversation about prospects is worth having.

Burger Huyser Attorneys’ Divorce Law practice — run by Director Anna-Mi Nel at the Sandton branch and supported by qualified mediators and a Family Law team across Gauteng — is set up to handle the unfairness inquiry on these terms, not as a moral inquiry into who was the worse spouse.

Procedural Steps: How the Claim Is Raised

1. Plead forfeiture specifically. Section 9 must be raised in the original summons or counterclaim. A general prayer for “such further or alternative relief as the court may deem fit” is not enough — the Pretoria seat confirmed this in P.P v P.P by treating the absence of a properly pleaded section 9 claim as a defect going to the cause of action.
2. File a supporting affidavit. The section 9 claim is not a typical “traversable” claim; it stands or falls on the founding affidavit. Pleadings should set out (i) the nature and extent of the benefit the other spouse would receive absent forfeiture, and (ii) the section 9(1) factors on which the claim relies.
3. Exchange pleadings and annexures. The ordinary motion-action timetable applies.
4. Set the matter down in the contested divorce court. In Gauteng, the relevant seat is determined by the parties’ residence — the Johannesburg seat for the Johannesburg metropolitan area, the Pretoria seat for the Tshwane metropolitan area and northern Gauteng. Both run contested divorce rolls. Forfeiture cannot be added to an unopposed divorce roll.
5. Oral evidence on the forfeiture claim alongside the rest of the divorce trial. Documentary evidence (texts, bank records, affidavits from witnesses) is typical; oral evidence-in-chief is usually avoided in a properly pleaded case.
6. Judgment at the end of the trial (or judgment reserved).

Evidence and the Standard of Proof

The claimant spouse bears the onus of proving the facts on which forfeiture is sought, on a balance of probabilities. The strength of the evidence required depends on the misconduct alleged — the more serious the allegation, the more rigorously the court will scrutinise the evidence. As the Pretoria seat confirmed in P.P v P.P (relying on Koza v Koza and the Engelbrecht line), the party claiming forfeiture must plead and prove the nature and value of the benefit sought to be forfeited — a failure on either leg defeats the claim.

Settlement of the underlying divorce does not automatically settle a forfeiture claim. If the parties settle on a without-prejudice basis, the forfeiture claim should be expressly addressed in the settlement agreement; otherwise the divorce decree will record no forfeiture and the right is treated as having been abandoned.

What the Court Cannot Do

• The court cannot make a forfeiture order against a spouse against whom no claim has been pleaded.
• The court cannot make a forfeiture order that strips a spouse of assets they would otherwise be entitled to keep in their own estate (for example, pre-marriage assets in an out-of-community without accrual marriage).
• The court cannot use forfeiture to punish misconduct. It is a fairness remedy, not a punitive one, and the post-ED v MS framing pulls it further away from retribution and toward the economic outcome.
• The court cannot conflate section 9 of the Divorce Act with section 15(9) of the Matrimonial Property Act, which governs the calculation of accrual. P.P v P.P treated that conflation as a defect going to the cause of action.

Costs and Practical Considerations

Forfeiture claims increase the cost of a divorce because they substantially extend the pleadings and trial. A typical undefended divorce with a forfeiture claim runs significantly longer than a simple uncontested divorce, and the length of the trial drives the cost. The forfeiture claim is decided together with the rest of the divorce, so there is no separate statutory fee for the claim as such — fees are quoted per file after review of the pleadings, exchange of affidavits, and a realistic estimate of trial length. The De Rebus and De Jure analyses are the typical practitioner references for fee-and-prospect conversations with clients.

Outcome Options if the Claim Succeeds or Fails

Outcome	Result
Forfeiture granted in full	The claimant spouse retains the entire accrual; the other spouse receives no accrual share.
Forfeiture granted in part	The court awards a reduced accrual share, reflecting the unfairness it has found.
Forfeiture refused	Each spouse receives the accrual share they would ordinarily be entitled to under the marriage regime.
Forfeiture claim struck out	The claim is removed from the case (for example, for non-compliance with the rules or failure to plead the section 9 factors); the divorce proceeds without the claim.

Choosing the Right Attorney for a Forfeiture Claim

Forfeiture sits at the intersection of family law and general civil litigation: it is a substantive family-law remedy, but it requires the kind of motion work and trial preparation that lives in a firm’s contested-litigation practice. Practical points to weigh when selecting an attorney:

• Doctrinal command of section 9. Pick an attorney who can read the post-ED v MS line and the 2025 Gauteng judgments (M.J.L v L.O.L and P.P v P.P) into the pleadings, rather than pleading the old substantial-misconduct threshold out of habit.
• Capacity to run the trial. Forfeiture contested in the Gauteng Division requires attorney capacity to manage pleadings, affidavits, discovery, and oral evidence — not just to draft a settlement.
• Honesty about prospects. The recurring theme in client feedback is that the value of an early conversation is being told, candidly, when a claim is unlikely to succeed — rather than running a long, expensive trial that nets nothing.
• Court-seat familiarity. Matters filed in Pretoria run on a different timetable and roll to those filed in Johannesburg; an attorney who practises in the relevant seat can advise on realistic timelines.

Burger Huyser Attorneys’ contested-divorce work is run by Director Anna-Mi Nel at the Sandton branch, with general-litigation support from Director Nadine Roesch-Prinsloo at Roodepoort and Director Herman Bonnet at the Pretoria branch — across all three seats the firm hears contested divorce work in the Gauteng Division.

The Gauteng Filing Layer

Forfeiture is a national remedy under section 9 of the Divorce Act 70 of 1979, but the practical filing layer is local. In Gauteng, contested divorces with forfeiture claims are heard in the Gauteng Division of the High Court, which sits in both Johannesburg and Pretoria — the seat assigned to a particular matter is determined by the court rules and the parties’ residence. The two 2025 case authorities cited in this article (M.J.L v L.O.L and P.P v P.P) both come from the Pretoria seat, which hears matters filed by parties resident in the Tshwane metropolitan area and the northern Gauteng region. Forfeiture claims are not brought in the Magistrate’s Court or the Family Court (the Family Court has no equitable jurisdiction to vary the matrimonial property regime), and they cannot be added to an unopposed divorce roll. The starting point for a person considering a forfeiture claim — or facing one — is a one-on-one consultation to confirm whether the facts justify the claim, what evidence will be needed, and what the realistic likely outcome is.

Frequently Asked Questions

Is forfeiture of patrimonial benefits the same as adultery or no-fault divorce?

No. Forfeiture is a Section 9 Divorce Act remedy that the court can apply on top of a divorce. A spouse may obtain a divorce on grounds of irretrievable breakdown regardless of whether there is any misconduct; forfeiture is a separate question about how the assets are divided once the divorce is granted.

What misconduct is required for a forfeiture order today?

Substantial misconduct is no longer a threshold requirement in the Gauteng Division since ED v MS 2020 ZAGPPHC 124. The court now weighs an open list of factors and grants forfeiture only where the result of not granting it would be clearly unfair; substantial misconduct is one factor the court may consider rather than a trigger that must be proved.

Does forfeiture apply to my antenuptial contract without accrual?

Generally no. If you married out of community of property without the accrual system, you do not have an accrual share to forfeit. Forfeiture under Section 9 operates on the accrual benefit, and there is no benefit to forfeit if the marriage excluded the accrual system.

Can I claim forfeiture if the marriage is short and there is no accrual?

If the marriage is short and one spouse has not contributed to the growth of the other spouse’s estate, the court may well find that forfeiture is not needed to achieve fairness — the other spouse already has no accrual claim to enforce. The question is not so much “is there misconduct” as “would refusing forfeiture produce an unfair outcome.”

When must the forfeiture claim be raised?

Forfeiture must be specifically pleaded in the divorce summons or counterclaim — a general prayer for relief is not enough. If you intend to claim forfeiture, you must raise it in the original pleadings and support it with a founding affidavit.

Is the forfeiture order automatic if we split the assets voluntarily?

No. A settlement of the underlying divorce does not automatically settle a forfeiture claim; the order must be sought and granted expressly. If the parties settle the divorce on a without-prejudice basis, the forfeiture claim should be expressly addressed in the settlement agreement.

How long does it take to get a forfeiture order, and what does it cost?

Forfeiture claims are heard as part of the divorce trial, so the timeline is the same as a contested divorce of similar complexity — typically several months from summons to judgment in the Gauteng Division. The cost depends on the length of the trial and the volume of evidence. Initial consultations are the appropriate place to discuss fees and prospects.

If you’re facing a divorce in which forfeiture of patrimonial benefits is being raised — or being raised against you — Burger Huyser Attorneys’ Divorce Law team can review the facts of your case, advise on the strength of the claim, and run the matter through the Gauteng Division of the High Court if the matter is in this province. The firm has offices in Linden, Randburg (head office, 011 888 0246), Sandton (011 253 3080), Pretoria / Menlyn (012 471 5700), Centurion (012 644 4990), Roodepoort (011 668 0030), Bedfordview (011 201 7190), Alberton (011 439 3990), and Midrand (010 022 4082), and the Divorce Law team is supported by qualified mediators and a Family Law practice under Director Anna-Mi Nel. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”). Book a consultation at the branch nearest to you to discuss the specifics of your matter.