Article by Durban Divorce Attorney: Fawzia Khan
Being married in community of property means that when the marriage is dissolved either on death or divorce, the joint estate of the parties is then divided and shared equally between them. This means all the assets as well as the debts of the joint estate is shared. If the marriage ends in divorce on the ground of the irretrievable break-down of a marriage, the court can order that the assets in the joint estate (referred to patrimonial benefits) be forfeited by one spouse in favour of the other.
See also: Which type of marriage for me?
Needless to say, the court will only consider making such an order in the following circumstances. It will take into account how long the parties were married, the circumstances which gave rise to the break-down and any substantial misconduct on the part of either of the parties. The court will also be required to consider that position that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefited. In November 2018 in the case of Masukela v Masukela, the North West High Court was asked to make an order for forfeiture of benefits, in a divorce action. The wife instituted divorce proceedings against her husband and claimed for fifty percent of the joint estate.
The husband defended the divorce and claimed that the wife forfeit her half share in the joint estate and that the entire patrimonial benefits be awarded to him. The reasons he gave included that in 2017 she had a child from another man. He also claimed that the wife failed to contribute meaningfully towards the acquisition of assets in the joint estate. He said that he was the main contributor of the assets which included a flat which he bought before they got married. He also told the court that he was suspicious of his wife’s movements as he had a tracking device installed in her motor vehicle and the records showed that she was not at the place she was supposed to be. He wanted a divorce but asked the court to order that the wife forfeit the entire patrimonial benefits of the marriage to him.
After hearing all the evidence, the court was satisfied that the was no substantial misconduct on the part of the wife. With regard to the wife having another man’s child, the court heard that the wife left the matrimonial home in 2016. The wife had a perfectly reasonable explanation of why she was at a certain place when she was supposed to be at work and found that she had contributed to the acquisition of the assets in the joint estate. Consequently, in that case there was no basis to justify that a forfeiture order to be made.
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