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When Infidelity Affects the Division of a Joint Estate
When Infidelity Affects the Division of a Joint Estate
Date: 2026-09-25
Can a spouse lose part of their share of the joint estate because of infidelity? A recent Gauteng High Court judgment illustrates that, in certain circumstances, serious misconduct during a marriage can have financial consequences on divorce. In this case the parties had been married in community of property for more than 27 years.
They had separated in 2019 and the main dispute at trial concerned how their substantial joint estate should be divided. The husband asked that the normal equal division of the joint estate be applied. The wife, however, asked the court to order forfeiture of benefits in terms of section 9(1) of the Divorce Act 70 of 1979.
What is forfeiture? When spouses are married in community of property, the general position is that the joint estate is divided equally when the marriage ends.
However, section 9(1) allows a court, where the statutory requirements are satisfied, to order that one spouse forfeit the whole or part of the benefits that would otherwise arise from the marriage. The court does not simply punish a spouse because the marriage ended badly. It must consider three statutory factors:
the duration of the marriage; the circumstances which gave rise to the breakdown of the marriage; and any substantial misconduct by either spouse.
What happened in this case? The wife presented evidence of numerous extramarital relationships over a prolonged period. The evidence included allegations that the husband had concealed children born from relationships outside the marriage and had used resources connected to the joint estate in circumstances associated with those relationships. The court accepted that the husband's prolonged extramarital conduct and concealment of children amounted to substantial misconduct.
Importantly, however, the court did not accept every allegation made by the wife as constituting substantial misconduct. The court considered the evidence relating to the various financial transactions and assets separately. The court also emphasised that the fact that a marriage is long-standing does not automatically prevent forfeiture. The quality and circumstances of the marriage must also be considered.
The court concluded that an equal 50/50 division would result in an undue benefit to the husband. It therefore ordered partial forfeiture. Instead of receiving 50% of the net divisible joint estate, the husband was awarded 25%, inclusive of the wife's pension interest. The judgment demonstrates that forfeiture is highly fact-specific.
Infidelity does not automatically mean that a spouse forfeits their share of the joint estate. However, where the evidence establishes prolonged and serious misconduct that materially contributed to the breakdown of the marriage, the court may consider whether an equal division would result in an undue benefit.
For spouses contemplating divorce, particularly where substantial assets are involved, the financial consequences of the breakdown of the marriage should therefore be considered separately from the emotional issues surrounding the divorce.
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