Legal Articles

In the case of one couple who were married in community of property, the wife (plaintiff) filed a claim for forfeiture of her husband’s (defendant) patrimonial benefits in terms of section 9(1) of the Divorce Act. 

The husband felt that he was entitled to share the benefits of his wife’s pension-fund, in terms of section 7(8)(a) of the Act, and therefore filed a counterclaim.

The husband had brought immovable property into the joint estate when entering the marriage. 

The wife didn’t bring any assets into the marriage, however she made renovations to the property and alleged that her husband didn’t contribute anything in this regard. 

Also she had built up pension interest due to her stable employment history which could not be said for her husband who had an erratic employment history resulting in no interest being built up. 

In order to decide whether or not to grant a forfeiture order, the court found that proof was needed showing that the spouse against whom the order of forfeiture was sort, would benefit if the order was not granted. 

Only after this proof was given could a decision be made. 

Only the assets which were brought into the estate by the other party are allowed to be forfeited. This party could not be ordered to forfeit any of its own assets.

The wife was able to prove the value of the house at the time of the divorce proceedings, however she couldn’t find the initial property worth when the marriage arrangement was entered into. As such the husband’s benefit at the end of marriage was not proven. 

The husband’s claim in terms of section 7(8)(a) of the Divorce Act was dependant on the court exercising discretion regarding the granting of the order. The court had to take all factors into consideration, as well as what was deemed fair. 

Based on the circumstances of the case, the court decided that it was fair not to grant the husbands order in terms of section 7(8)(a).

As a result, both the wife’s claim for forfeiture of the benefits which came from the marriage, and the husband’s counterclaim were dismissed by the court. 

Van Deventer & Van Deventer Incorporated - Divorce attorneys Cape Town & Johannesburg

Contact us for expert legal advice