“I take thee to be my wedded wife/husband, to have and to hold from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, to love and to cherish, till death do us part . . . and thereto I pledge thee my faith”.

Many failed marriages are effective evidence to how many people are so untruthful when they make the above vows. It, in extent, gives a laudable attestation to the observation that, ‘criminal lawyers see people at their best, and divorce lawyers see people at their worst’.

That is the case with the recent High Court decision in a very contentious divorce matter. This article will assess the case and possibly advance what parties should consider when they institute or defend divorce actions.

In the matter of M[....] v M[....] (HCAA06/2021) [2021] ZALMPPHC 84 (23 November 2021), a couple had been married since 1985 in community of property (50%/50%). Like many marriages, theirs also had its ups and downs, which led to the husband filing for divorce in 2016. His reasons for wanting divorce were the following:

1. They were no longer compatible and no longer share common interest;
2. The wife through her conduct humiliated and hurt him;
3. He lost his love and affection for his wife and is no longer interested in the continuation of the marriage relationship;
4. The wife denies him with his conjugal rights.

The wife defended the action and counter claim advancing the following reasons for wanting the divorce:

1. The husband had adulterous relationship which he refused to end notwithstanding numerous request by the wife;
2. The husband has a 5 year old child with his mistress;
3. The husband had failed to contribute a fair share according to his means towards the running of the household and the maintenance of their children;
4. The husband has ruined the appellant in the amount of approximately R1 500 000.00;
5. The husband was irresponsible in that he would inter alia spend his money on his mistress;
6. The husband has humiliated and degraded her throughout their marriage relationship;
7. There is lack of communication between them;
8. They were living separate lives and are no longer interested in the continuation of the marriage relationship.

As a result of her grounds, the wife asked the court to order the husband to partly forfeit his share of her pension fund which amounted to R2 840 000.00 because the husband would be unduly benefited if a partial forfeiture order in respect of her pension benefit is not made against her share because the husband had a prolonged extra marital relationship and he mismanaged their parties once thriving cash loan business.

A superficial view may indicate that the wife’s request was sound and justified. She had been cheated on, his husband had wasted money and impoverished their estate to the benefit of his mistress(es). But the facts and the law on a claim for forfeiture during divorce proceeding revealed, an otherwise interesting revelation.

THE LAW ON FORFEITURE

Section 9(1) of the Divorce Act 70 of 1979 says:

“When a decree of divorce is granted on the grounds of the irretrievable breakdown of the 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 breakdown and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the other party will in relation to the other be unduly benefited.”

In divorce, a claim for forfeiture is sacrosanct and cannot be viewed in isolation, the Courts must have regard to all the other factors mentioned. And in this case, the court did.

It found that, the wife had known that the wife knew of the husbands’ extramarital affairs and they even attended marriage counselling which revealed the husbands adamant attitude and how proud he was to have extra marital affairs claiming that it is something that is “in him”. He even said that men who do not have mistresses are fools. The fact that the wife knew of the extra marital affair since 2007 and that at no stage did she try to institute divorce proceedings, the court held, she essentially gave permission to her adulterous husband to continue having affairs “until he got tired and then they would talk”.

Essentially, by condoning the respondent’s actions for nine years, the wife had waived her right to rely on the possible right to claim forfeiture on the ground of the husband’s misconduct and extramarital affairs.

The court concluded that having considered the duration of the marriage, the circumstances that led to the breakdown of their marriage and that both parties have committed substantial misconduct, an undue benefit will not accrue to one party in relation to the other if an order for forfeiture is not granted. The divorce decree was granted and the ‘cheating’ husband will get his handsome share of about R1 420 000.00 from the wife’s pension.

CONCLUSION

When married persons suspect foul and feel they no longer wish to continue with their marriage, it is advisable to engage an attorney as soon as possible for advice. This may prove beneficial because, if the parties stay and do nothing even though they suspect misconduct from their partner, that may latter be viewed as condoning that behavior and any claim for forfeiture on that ground may be tainted.

Reference List:

• National Credit Act 34 of 2005.
• Bayport Securitisation Limited and Another v University of Stellenbosch Law Clinic and Others (Case no 507/2020) [2021] ZASCA 156
• Law Society of south Africa. Law Society welcomes SCA judgement. Accessed on 01 December 2021. <https://www.lssa.org.za/news/law-society-welcomes-sca-judgement/>.