In the past, if your were responsible for a marriage being wrecked then you could not benefit financially from it and your partner would, therefore be granted a forfeiture order.
This changed with the introduction of the Divorce Act wherein the conduct of each spouse during the marriage is only one of the three factors that the court considers when deciding whether or not to grant a forfeiture order.
No longer is the fault or conduct of one or both spouses the main reason for forfeiture orders being granted.
For marriages in community of property that have reached a stage of disrepair with no hopes of resolution, the court is able to use discretion to order the forfeiture of benefits of one party in favor of the other when granting a divorce.
This excludes gifts received by either spouse, and any assets that a spouse brought into the joint estate.
When deciding to grant a forfeiture order the court will consider the duration of the marriage, the circumstances that lead up to its breakdown, and substantial misconduct by one or both parties (if any).
No other factors are taken into account apart from these when a forfeiture order is being decided upon.
Generally, the assets of both spouses form part of the joint estate when they are married in community of property. At the dissolving of the marriage arrangement these assets must be divided.
A settlement agreement is drafted when the spouses are able to agree on how to divide the joint estate.
However, if they cannot come to an agreement then the court can appoint a receiver or liquidator to handle the division of the estate.
Factors such as the size, nature and value of the joint estate will all be taken into consideration when the court decides on appointing a liquidator. And once the estate has been divided, the liquidators fees are paid for from the joint estate.
During the divorce process, one spouse who is married in community of property may attempt to jeopardise the other spouse’s interest in the joint estate. And while this is always a risk, the law does provide protection to the other spouse in such instances.
For example, if a spouse sells a car without the others consent for R50, 000 when it is actually worth R300, 000. As this will jeopardise the joint estate, the innocent spouse will be able to claim for half the damages when the joint estate is divided at divorce.
This amount will be payable from the joint estate and the adjustment will be made by the court when the division takes place.
The innocent spouse can lodge an application to the court so as to suspend the other spouse’s power over the joint estate in order to protect the joint estate from the negligent or reckless behaviour regarding the treatment of the joint estate or to prevent him or her from alienating assets.
If the application is granted, then the innocent spouse can control the estate without the need of consent from the other.
Contact Van Deventer & Van Deventer Incorporated for any aspect of Divorce & Family Law.
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