Article by Umhlanga divorce lawyer, Fawzia Khan
Ordering that a spouse forfeit his or her share of the patrimonial benefits in a marriage is not something the courts will do lightly. This is so especially if the marriage is an “in community of property” one, where the 50% sharing of the patrimonial benefits operates by law, and such a forfeiture order cuts right through a person’s legal entitlement.
In deciding whether or not such a forfeiture order can be made against a spouse, the court will take into account the following important factors.
The test which the court would apply is if the order for forfeiture is not made, one party will unduly benefit in relation to the other.
On 2 November 2020, the Gauteng high court sitting as a court of appeal handed down its judgement in an appeal brought by a woman who got divorced. In that case, the regional court in Gauteng ordered that the husband [who was married in community of property to his former wife], forfeit a portion of the woman’s pension fund and the immovable property in the joint estate. The ex-wife was not happy with the partial forfeiture award and took the matter on appeal to the high court. She said that the marriage was of a short duration and that they were married by civil rights in 2015 and by 2017 the husband left the matrimonial home and never returned. She also argued that her husband had not made any contributions (financial or otherwise) towards the immovable property and that it was his misconduct which resulted in the marriage breaking down.
The husband denied any misconduct and demanded that he receive his 50% of the share in their joint estate. After hearing all the evidence, the trial court made a partial forfeiture order that the husband should forfeit twenty percent in the immovable property and the pension interest. The appeal court found that there was no evidence that the trial court did not apply its discretionary powers properly and refused to interfere with the partial forfeiture order made by the trial court. The appeal court said that it would only interfere with a lower court’s discretionary power in very limited instances. This would be if that court acted capriciously, was moved by a wrong principle of law or an incorrect appreciation of the facts, had not brought its unbiased judgment to bear on the issue, or had not acted for substantial reasons.’
It also said it would equally not be competent for the High Court to alter the percentage of the benefits that should be forfeited by the husband merely because it believed that its preferred percentage was the appropriate percentage. Insofar as the duration of the marriage was concerned, the court said that the couple were customarily married in 2009. Even though they parted ways and reconciled in 2011 the court looked at the entire period when they were married in terms of customary law as well as the civil marriage. The high court found that the parties could not be said to have been married for a short duration only. The woman’s appeal was accordingly dismissed.
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