Forfeiture claim of patrimonial benefits in divorce

Divorce can be a complicated and stressful process, particularly when it comes to dividing assets and property. In South Africa, one way that property can be divided in a divorce is through a forfeiture claim.

If a court finds that one spouse is primarily responsible for the breakdown of the marriage, the court may order that spouse to forfeit any benefits that he or she would have received under the matrimonial property regime.  This means that a specific asset or even all benefits can be forfeited, regardless of the content of the parties’ ante-nuptial agreement.

A forfeiture claim can be made under Section 9(1) of the Divorce Act:

 “(1) When a decree of divorce is granted on the ground of the irretrievable break-down of 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.”

The court has to consider three factors before granting a forfeiture order:

1. The duration of the marriage;
2. The circumstances which gave rise to the breakdown thereof; and
3. Any substantial misconduct on the part of either of the parties.

The law does not favour either a man or a woman, any spouse can claim forfeiture. It should, however, be kept in mind that each matter will be considered on its own merit. The fact that your spouse engaged in an extra-marital affair does not simply result in forfeiture. The court will take into account all of the factors that led to the breakdown of the marriage, whether it resulted in substantial misconduct as well as the duration of the marriage. The court may very well find that the infidelity was merely a symptom of a poor marital relationship, which was actually the cause of the divorce rather than the infidelity itself.

In a recent judgment (February 2023) by the Gauteng High Court, Pretoria, in the matter M v M, the court ruled that a husband who started his married life by making sexual advances to one of the bridesmaids on their wedding day and continued on this path during their 12-year marriage, that he would not benefit from his wife’s successes. The court found that it would be exceedingly unfair that the husband, having shown no regard for his role as husband and father, and having made no contribution of any kind to the common home, neither financially nor emotionally, should benefit from the wife’s work and ordered forfeiting of the patrimonial benefits of the accrual system in total.

In the case of ND v JD (2020) the court had to consider whether an act of adultery by the husband warranted a forfeiture of his share of the assets. The court found that the adultery did not amount to a serious breach of the marital relationship and therefore denied the wife's forfeiture claim.

In the case of Van Zyl v Van Zyl (2020), where a wife who had been physically and emotionally abused by her husband, the court found that the abuse was a serious breach of the marital relationship and awarded the wife a larger share of the assets as a result.

These cases illustrate the fact that forfeiture claims are not automatic and that each case will be decided on its own merits.