• The Kaplan Team

THOUGHT OF THE WEEK Forfeiture of patrimonial benefits

In a recent decision, Judge Daisy Molefe granted a divorce and ruled that the husband forfeits any patrimonial benefits arising out of the marriage in community of property. The husband goes away with nothing.


Background:

The couple were married seven years ago in community of property. The wife indicated that during the course of the marriage, the husband was involved in affairs and used vile language towards her. She admitted that she withheld conjugal rights from him, but explained to the judge that given his promiscuity she did this for health reasons. The wife informed the court that the husband did not contribute towards the upkeep of the house and did not contribute towards household expenses except to buy dog food.


Finding:

The court found that:

- the wife was a credible witness who worked for 25 years as a nurse, contributing during this time to her own pension which amounted to about R2 million; and

- in the circumstances it would be wrong for the cheating husband to have a share in this.


The court consequently ruled that the husband forfeit any patrimonial benefits arising out of the marriage in community of property and granted a decree of divorce on that basis.


Factors taken into account in terms of law when one party is seeking a forfeiture order:


Section 9(1)  of the Divorce Act 70 of 1979 (DA), provides that if a divorce is granted on the grounds of an irretrievable breakdown of the marriage, then the court may make an order that the patrimonial benefits of that marriage be forfeited.


The patrimonial benefits are forfeited by one party in favour of the other, either wholly or in part, having regard to the:


- duration of the marriage;

- circumstances which gave rise to the breakdown thereof;

- any substantial misconduct on the part of either of the parties;

- and if the court is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefited.


Contact our Family Law Department for more information regarding the above.


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