Whatshot
Legal Talk
Legal Talk
Date: 2013-04-18
Conversely they are also jointly responsible for all losses and debts in the joint estate, regardless of which spouse was responsible for that particular debt. A forfeiture claim would therefore disallow a spouse from receiving a benefit, which he or she would ordinarily be entitled to receive. Because the fault principle is no longer part of our divorce law, meaning all you need to prove to the court is that the marriage has irretrievably broken down, our courts will reluctant to make forfeiture orders.
The Divorce Act 70 of 1979 does however allow the court to make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, wholly or in part. However before it's allowed to make such a decision, the court must consider three aspects, namely the duration of the marriage, what circumstances gave rise to the break-down thereof as well as any substantial misconduct of either of the parties. The court can order a percentage of the estate or a specific asset to be forfeited.
In March this year, the High Court in Bloemfontein was asked in a divorce action, to make a ruling allowing one of the spouses the right of forfeiture of benefits against the other. The wife claimed that her husband did not contribute towards the bond instalment of the matrimonial home, nor did he pay the rates and taxes, or electricity on the property concerned.
She said that as her husband did not maintain his financial obligations towards the upkeep of the household expenses, he would be unduly benefitted if he was allowed to share in the value of their immovable property. She asked that her husband accordingly forfeit his fifty per cent share in their joint estate.
The husband denied these claims and asked the Court to order an equal division of the joint estate. He said that he supported his wife during her studies to become a teacher, made certain purchases such as a motor vehicle for use by his wife and contributed towards the purchase and renovations of their current home.
The court found that the husband misconducted himself and that he made no meaningful contribution to the new house and that therefore this reduced his rights to the joint estate and ordered that their estate be spilt with the wife receiving two thirds of the proceeds in the estate and the husband receiving one third.
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