When a decree of divorce is granted on the grounds of the irretrievable breakdown of the marriage the Court, under section 9(1) of the Divorce Act 70 of 1979 (hereinafter referred to as “the Act”), 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. Where the marriage is subject to the accrual system, the right to share in the accrual of the estate of a spouse is a patrimonial benefit which the Court may declare forfeited, either wholly or in part (see section 9 of the Matrimonial Property Act 88 of 1984). The court will make a forfeiture order if, having regard to the duration of the marriage, the circumstances which gave rise to the breakdown, and any substantial misconduct on the part of either of the parties, it is satisfied that, if an order for forfeiture is not made, the one party will in relation to the other be unduly benefited. No such order may be made when a divorce is granted on the grounds of the mental illness or continuous unconsciousness of the defendant.
The forfeiture rule contained in section 9(1) of the Act has little in common with the previous Divorce Act forfeiture rule, except the word ‘forfeiture’. The idea behind the old forfeiture rule was that a ‘guilty’ spouse must not be allowed to benefit from a marriage which he or she had wrecked. No forfeiture could be decreed unless it was claimed, but if it was claimed by the ‘innocent’ spouse, the court could not withhold it. Nor could the court restrict forfeiture to part of the benefits only, it was a matter of ‘all-or-nothing’.
In terms of the 1979 Act there is no longer an ‘innocent’ or ‘guilty’ spouse as in the old sense. ‘Substantial misconduct’ on the part of one or other of the spouses is only one of the factors which the court may take into consideration. It is within the discretion of the court whether to make an order of forfeiture or to withhold it. It may make it in favour of the plaintiff or the defendant – there is nothing to preclude it from making an order in favour of the spouse who formerly would have been considered the guilty one. Finally, it may decree that forfeiture shall extend to the whole or part only of the matrimonial benefits.
The factors which the courts have to take into account when deciding whether or not a forfeiture order should be made under section 9(1) of the Act are the duration of the marriage, the circumstances which gave rise to its breakdown, and any substantial misconduct on the part of either of the spouses. No reference is made to the financial needs and obligations of the spouses or their ages and state of health, but there is little doubt that these circumstances, too, will be taken into account.
Where section 7(2) of the Act, dealing with the award of maintenance, speaks of ‘conduct in so far as it may be relevant to the breakdown of the marriage’, section 9(1) speaks of ‘substantial misconduct on the part of either of the spouses’. It is arguable that as a result a greater degree of misconduct is required for the purposes of section 9(1) than for the purposes of section 7(2).
In Singh v Singh (1983) (1) SA 781 (C), the court decided that the wife’s misconduct with another man amounted to ‘substantial misconduct’ and outweighed the fact that the marriage has lasted 20 years. One of the factors which influenced the court in the case of Soupionas v Soupionas 1983 (3) SA 757 (T) in its decision not to make a forfeiture order for which both parties, on different grounds, had applied was that they had lived together for 9 years before their marriage.
The judge held as follows:
‘If people, after finding solace and satisfaction in each other’s physical company for a period of years, decide to marry, the legal consequences of the marriage must be an important motivating factor for that contract of marriage and, consequently, all the material consequences of that marriage must have been thoroughly contemplated between the parties and it would be sound public policy to enforce such contractual views of the parties against each other.’
Section 9(1) does not empower the court to award ’portion of an errant husband’s separate estate’, to his wife (see Rousalis 1980 (3) SA 446 (C)). Forfeiture is limited to the ‘benefits of the marriage’, presumably to the extent to which the penalized spouse is still enriched thereby.
The court, in exercising its discretion under section 9(1), may declare a specific asset – a house, a farm, shares or a certain sum of money – forfeit, or it may make a forfeiture order in general terms, such as, ‘half of the patrimonial benefits which the husband [or the wife] has derived from the marriage shall be forfeited to the wife [or the husband], or, more specifically, ‘the patrimonial benefits derived by the husband [or the wife] from the marriage by virtue of community of property and community of profit and loss [by virtue of the accrual system] shall be forfeited by him [her] to the wife [husband]’.
As section 9(1) provides that a forfeiture order may be made ‘when a decree of divorce is granted’, it would appear that if no such decree has been made at the time of the divorce, it cannot be made later.
From a conveyancing point of view, where the court provides for the forfeiture of benefits and a joint estate is involved, it must specifically refer to the immovable property being forfeited before such property can be endorsed in terms of section 45 of the Deeds Registries Act 47 of 1937 so as to allow the spouse in whose favour the forfeiture was awarded to deal with such property.
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TONKIN CLACEY PRETORIA
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