1      INTRODUCTION

Divorce is never a pleasant experience for anyone. There is no “pleasant divorce.” No, an amicable divorce is not a pleasant divorce. Regardless of how the marriage is dissolved, it brings to an ultimate end a big stage of your life; regardless of the role it played, the relationship was (at the time) enough for you to decide to take the next step and take a giant leap. With divorce comes a lot of change, most of which is only truly appreciated once you are put in this position yourself. A lot happens in marriage that is usually only given proper thought when the relationship has already become irreconcilable. Aside from the creation of a family (with or without children), the second biggest and most common characteristic in a marital relationship is the little pot that is filled with things acquired from the fruits of your labour. Those things are then translated into assets. The usual effect of divorce (where a community of property or an accrual exists) is that a type of sharing would then take place (“the sharing exercise”).

Not all divorces, however, follow the norm of the sharing exercise. Some entertain or seek a type of forfeiture of benefits. When you think of forfeiture of benefits, what is the first thing that comes to mind? Plenty! There are so many questions that may come to mind; so many, in fact, that it is enough to ensure you are left counting sheep as you try to fall asleep! Let’s start eliminating those sheep for you by taking you through this concept carefully.

2      UNDERSTANDING THE CONCEPT

The first thing you need to do is make sure that you understand what this concept entails. Let’s firstly deal with what it is not:

1. Forfeiture of benefits does NOT mean you forfeit everything that is in your name;
2. Just because there is a claim for forfeiture of benefits, does NOT mean it will happen;
3. A claim for forfeiture of benefits is NOT the normal course of action to take;
4. Forfeiture of benefits should NOT be claimed lightly;
5. Forfeiture of benefits is NOT suitable to all divorce actions;

Forfeiture of benefits is catered for in South African Divorce Laws under Section 9 of the Divorce Act (70 of 1979). This is what the first paragraph of Section 9 reads:

“When a decree of divorce is granted on the ground of the irretrievable break-down of a marriage the court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part, if the court, having regard to the duration of the marriage, the circumstances which gave rise to the break-down thereof and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefited.”

3      BREAKING DOWN THE ELEMENTS

3.1    Irretrievable Breakdown

An irretrievable breakdown is the first unassailable element that MUST exist; from this, one can already derive that there are categorically unsuitable situations where forfeiture of benefits may never be claimed. The first is if the reason for the divorce is that your spouse is mentally ill and the second is if the reason for the divorce is that your spouse is in a state of continuous unconsciousness. These two grounds are not fault-based per se and thus will undoubtedly cause severe prejudice to them if forfeiture of benefits orders were granted against them.

3.2    Patrimonial benefits of the marriage

When you see that the forfeiture of benefits is catered for benefits from within the marriage, you can already see that there is yet another limitation on this. Separate estate or assets are usually excluded from this context because they are not benefits derived from the marriage itself. This is not always the case e.g. for marriages in community of property. The best example of this concept is inheritance. However, the key point here is that there must be an ACTUAL benefit, not an hypothetical one. This means you need to determine whether or not the other spouse would be factually benefitting by the sharing exercise in the first place. [1] This is a purely factual issue and amounts to an accounting exercise. An example of recognising a benefit is in a scenario where one spouse was the breadwinner and the other the home-keeper. The latter spouse would have neither accumulated a separate estate nor contributed equally to the estate, where the converse would apply to the former spouse. This scenario is indicative of benefit derived: the latter spouse would benefit from the estate.

3.3    Either wholly or in part

A claim for forfeiture can either be a complete forfeiture of benefits, or it can be a partial or specific forfeiture of benefits. An example of such a claim is for an order that the spouse have his or her benefit to a specific investment (where he or she would have ordinarily been bestowed with a right to benefit therefrom) reduced by a percentage, or forfeited entirely.[2]

3.4    Factors considered

This is where the exercise becomes complex. Firstly, the number of grounds is exhaustive and the outcome of these enquiries will either make or break a case for a forfeiture of benefits claim. They are exclusive and peremptory. This means that you cannot “read in” additional factors which are, for example, in the interests of justice to do so. You cannot go outside of these factors to somehow fit your case into a forfeiture of benefits claim.[3] The factors to be considered in a claim for forfeiture of benefits are therefore non-discretionary; the courts refer to the perimeters as “relatively narrow”[4] because it is limitedto the following elements:

• the duration of the marriage;
• the circumstances which gave rise to the breakdown thereof; and
• any substantial misconduct on the part of either of the parties.

It cannot be said any better that Judge Van Heerden himself: “Conspicuously absent from section 9 is a catch-all phrase, permitting the Court, in addition to the factors listed, to have regard to “any other factor””.[5]

What does this mean for you? It means that even if you pass the first part of the test (being the irretrievable-breakdown element), your claim must also pass judicial muster and the perimeters of your claim must fall exclusive within these factors. Note that none of the factors are considered in isolation. They are considered cumulatively. There is no criteria which is prioritised over the other.

3.5    Unduly Benefitted

To understand what this means is to understand how the aforementioned factors line up in this exercise. Earlier I mentioned that it is an accounting exercise to determine whether or not the other spouse will benefit from the patrimonial consequences of the marriage. However, even after ascertaining that there will be a benefit, it still needs to be proven that the benefit will be undue. How do you determine if the benefit is undue? The exercise includes considering those 3 factors in the case of the marriage. This is a value judgment. The definition of ‘undue’ has been defined as, “unwarranted or inappropriate because [it is] excessive or disproportionate.”[6]

3.5.1     Duration of the marriage

Our Courts have been tasked with matters where a marriage of short duration resulted in undue benefits being receivable to one spouse at the expense of the other.[7] In the context of this question, ordinarily, the Court looks to the conduct of the Parties which led to the marriage relationship breaking down prematurely.

However, what if there is a possibility that, notwithstanding a short marriage, the other spouse would stand to gain half of your estate that you accumulated before the marriage? For example: you are a professional business person and you accumulated a tremendous amount of wealth prior to the marriage. You and your spouse are married to one another in community of property. If the marriage relationship lasted only 3 years, would you consider it fair that your spouse receives half of this pre-marriage accumulation?

This very question has been posed in our Courts already, bearing in mind that “fairness” on its own is not a factor listed in Section 9.[8] I already mentioned that the Courts are confined to the factors listed in Section 9. Two High Court Judgments, however, found it appropriate to ensure this consideration was given the appropriate weight that it required. The first Judgment noted that it was “improper and unfair” for benefits to be shared because the marriage was so short-lived.[9] The second Judgment noted this contention, and observed this argument from a different angle: whilst fairness was not a factor, the fact that duration of the marriage was a factor, the consideration of proportionate may be valid and appropriate.[10] Especially when confronted with a case where neither the conduct of the parties nor the reason for the breakdown of the relationship were decisive, it is strongest in a fault-neutral scenario. This is important because the Court therefore made a value judgment based on objective criteria (duration of the marriage) since the enquiry into the other two factors led the Court to naught. Therefore, a patrimonial benefit may be subject to forfeiture in a contextually short marriage as it may be perceived as undue on this basis.

The Court, however, made an exceptional disclaimer to state that it is not a hard-and-fast rule; all of the factors must be weighed together.

3.5.2     Circumstances giving rise to the breakdown of the relationship

This is a very interesting factor to unpack. South African law has abandoned the old “fault system” insofar as it used to be relevant to prove a breakdown of the marital relationship, which was so prominent in older divorce cases. Be that as it may, “fault” plays a part in this enquiry. Cases have considered the following as relevant circumstances in the forfeiture of benefits enquiry:

1. Lack of intimacy;
2. Adultery;
3. Arbitrary habitual absence from the marital home;
4. Abuse (various forms);
5. Financial secrecy or deception;
6. Lack of meaningful communication e.g. a lack of appropriate conflict resolution habits or behaviour;

The Court has remarked that misconduct in this context must be substantial. Once-off incidents are not deemed substantial unless it followed a pattern of similar behaviour.[11]

The concept of UNDULY BENEFITTING is arguably the most important facet of the forfeiture of benefits determination. Whilst it is important to prove that a benefit is receivable by the other spouse, it is of more relevance to the enquiry for you to prove that the other party receiving this benefit would be undue.

“Joint ownership of another’s property is a right which each of the spouses acquires on concluding a marriage in community of property. Unless the parties (either before or during the marriage) make precisely equal contributions, the one that contributed less shall on dissolution of the marriage be benefited above the other if forfeiture is not ordered. This is the inevitable consequence of the parties’ matrimonial regime. The Legislature (in section 9 of the Divorce Act 70 of 1979) does not give the greater contributor the opportunity to complain about this. He can only complain if the benefit was undue.”[12]

This statement is important because the spouses may not simply assume that this so-called ‘balancing’ exercise will be done by the Court of its own accord.

4      Conclusion

Forfeiture of benefits claims are difficult to prove because they are value-based judgments that are ascertainable only on the evidence of the spouses. The only objective considerations are the actual benefit derived and the duration of the marriage. It has a limited scope and is considered an extra-ordinary remedy.

Aleisha Oliver

3 March 2020

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[1] Wijker v Wijker 1993 (4) SA 720 (A)

[2] Bezuidenhout v Bezuidenhout 2005 (2) SA 187 SCA

[3] Botha v Botha 2006 (4) SA 144 SCA

[4] Ibid

[5] Botha v Botha 2006 (4) SA 144 SCA at par. 6

[6] Ibid

[7] Tlou v Ralebipi [2016] 4 All SA 251 (GP)

[8] Ibid; see also Wijker v Wijker at fn. 1

[9] Klerck v Klerck 1991 (1) SA 265

[10] Op cit 6 at par. 20.17

[11] Ibid

[12] Engelbrecht v Engelbrecht 1989 (1) SA 597 (C)