Written By Anna-Mi Nel
28 July 2024

What is the meaning of forfeiture of patrimonial benefits in South Africa?

“The Legislature does not give the greater contributor the opportunity to complain about [the lesser contributor being benefitted above him]. He can only complain if the benefit is undue.” – This statement was made by Honourable Justice Adams in the High Court of South Africa, Gauteng, on 10 January 2024, to demonstrate the reasoning behind the court’s order for forfeiture of the defendant’s patrimonial benefits – that if the court had made the order, the defendant would have benefitted unduly from the dissolution of the marriage. This quote encapsulates the goal of the legislation and implementation of the forfeiture of patrimonial benefits of marriage, namely to prevent undue benefit rather than address every imbalance in contributions.

Despite the emotional turmoil of a broken marriage and the tumultuous divorce that often follows, courts have the power to right some of the wrongs suffered during the marriage by handing down a monetary order. Below, we discuss the concept of forfeiture of patrimonial benefits and its application during a divorce action.

What is a forfeiture of Patrimonial benefits claim?

In terms of Section 9 of the Divorce Act, 70 of 1979, the court has the discretion to make an order during a divorce whereby one spouse forfeits their portion of the patrimonial benefits in terms of the marriage. If a forfeiture order is made,  the court should be satisfied that one of the spouses would have unduly benefitted from the marriage in terms of the patrimonial benefits if the order was not made.

Which factors are taken into account by the court in a forfeiture claim?

Various factors are considered when the court considers whether a spouse should forfeit their patrimonial benefits and, if so, whether they should forfeit these benefits either wholly or in part. These factors include:

*The duration of the marriage: It becomes considerably more challenging to prove that one party should forfeit patrimonial benefits if the couple were married for a long time.
*Reasons gave rise to the breakdown of the marriage.
*Any substantial material misconduct by either of the parties.
*The contribution each party has made towards the marriage, as spouses have a reciprocal duty to one another.

How is substantial misconduct proven during a divorce trial?

To prove substantial misconduct, the person making the allegations against the other party must support these allegations with adequate proof of the alleged misconduct or provide satisfactory testimony during the divorce trial. On the other hand, the party contending with substantial misconduct allegations during the trial will have the opportunity to prove them false. After considering all the evidence presented in the matter, the court will decide whether substantial misconduct has occurred.

What constitutes substantial misconduct?

The court may consider substantial misconduct directly related to the possibility of one spouse receiving undue benefit from the marriage’s patrimonial assets. Factors that generally take precedence when the court considers substantial misconduct are:

Financial abuse: where one spouse controlled the other financially to such a degree that it hindered their everyday movements and capacity.

Physical abuse: where one spouse committed domestic violence in the form of physical abuse against their spouse during the marriage. The court is more likely to see physical abuse as substantial misconduct if the abuse reoccurs over a period of time.

Emotional, verbal, and psychological abuse: where one spouse has, for example, belittled the other, called them names, or made derogatory comments towards the other spouse for the lifetime of the marriage.

Little to no contribution towards the household: Spouses are expected to maintain each other during marriage, and it is highly frowned upon if a spouse fails to uphold this duty of support towards their spouse or the children born from their marriage. The court expects spouses to ensure that basic necessities are catered for in proportion to their monthly income for their spouse and their shared children.

Neglecting minor children born from the marriage: A bad parent is often considered a bad partner in the eyes of the court. Even though parents pledge that their children’s best interests will always be paramount, this standard is often not met during a marriage.

Abusive towards the minor children born from the marriage: It is damning when a parent undermines the safety and well-being of children. Every parent shall, in terms of the Children’s Act, 38 of 2005, as amended, ensure their children’s emotional, physical, and psychological development.

Any other factor the court may consider: The court’s discretion is vast and unlimited when considering substantial misconduct on the other spouse’s part.

It is important to note that the court’s primary consideration in forfeiture is whether one spouse would unduly benefit from the marriage’s patrimonial benefits without the order rather than the misconduct alone being sufficient grounds for forfeiture. Substantial misconduct is only relevant insofar as it leads to such undue benefit.

How and when can I claim forfeiture of patrimonial benefits?

A claim for forfeiture must be appropriately set out during the divorce, as the opportunity for a spouse to claim forfeiture of patrimonial benefits expires once the court has already made an order regarding the divorce action. In other words, if a party attempts to re-enter the corridors of the court years later to alter a court’s order regarding their divorce, they will not be allowed to do so. A forfeiture claim must, therefore, be set out either in the particulars of the claim when a divorce action is instituted or in a counterclaim. The spouse reliant on the forfeiture claim must ensure that the claim is adequately substantiated by:

1. providing reasons why the court must grant a forfeiture order; and
2. demonstrating that the other spouse will unduly benefit if the order is not granted.

How does a couple’s marital regime affect a forfeiture claim in the divorce?

A spouse married in community of property may request that the court order forfeiture of part or all of the patrimonial benefits that the other spouse would have received. The court can order a partial or complete forfeiture, depending on whether one spouse would unduly benefit without the order. Contrasting to the above, a spouse married out of community of property with accrual may request a forfeiture of the other spouse’s share of the accrual if they can prove that the spouse would otherwise unduly benefit from the dissolution of the marriage.

Can I request that my partner forfeit the right to share in my pension?

Yes, a spouse can request that the court order the forfeiture of the other spouse’s right to share in their pension. However, solid evidence and adequate proof demonstrating why the other spouse should not share in their pension must support this request. In addition, the court will also determine whether a spouse should entirely or wholly forfeit their right to share in the other spouse’s pension by taking the following factors into account:
*the duration of the marriage,
*the reasons for the breakdown of the marriage,
*any substantial misconduct on any party’s part, and
*any other factor that the court may deem necessary in order to come to a just conclusion.

Contact Burger Huyser Attorneys‘ specialist divorce attorneys to ensure that your spouse does not benefit unduly from the dissolution of your marriage, whether due to the lack of a forfeiture order or the unfair granting thereof.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE