Client comes in for divorce and is frustrated due to the fact that they are married in community of property and only one person really contributed or one person is a certain cause of the breakdown of the marriage. They feel that the other party should not benefit or receive a half share of what was worked so hard for, be it pension fund monies, immovable or movable assets and or savings.
In a situation like this the legal adviser will have to take certain facts into consideration before a claim for forfeiture of certain or all benefits from a marriage in community of property can be made in the summons and or counterclaim.
A Forfeiture order can be made by court regarding all or only certain benefits to be received by one party from a marriage in community of property OR a marriage with an ante nuptial agreement that includes the accrual system.
Previously the old forfeiture rule included that the “guilty” spouse will not be allowed to benefit from a marriage which he or she is the cause of breakdown and the divorce. No forfeiture could be granted if it was not claimed, BUT the court could also not refuse it if it was claimed and not opposed. The forfeiture also previously included only an order for all benefits, an order only applicable to partial forfeiture could not be made.
Now this has changed and the court takes the following factors into consideration to grant forfeiture:
- Substantial misconduct on the part of one of the parties.
- Duration of the marriage;
- The circumstances that gave rise to the breakdown of the marriage and
- in some instances we have noted courts taking the ages, financial obligations and state of health of parties into consideration.
It is now within the discretion of the court to make a forfeiture order or not. Further hereto the court may also now make an order if the forfeiture will extend to the whole or only partly to certain of the matrimonial benefits.
Our focus next month will be on property and therefor I wish to stress the following to all attorneys and clients attending to divorce matters. When a situation arises that an immovable property is granted as being forfeited as a partial forfeiture as referred to above OR parties agree that an immovable property will now be the sole property of only one of the parties THEN the following is very important: the court order or settlement agreement made an order of court MUST specifically refer to the immovable property to enable the conveyancer attending to the Section 45 endorsement to proceed and deal with the property. If the property is not specifically referred to or incorrectly referred to an application to amend the order will be necessary which will only amount to unnecessary legal fees.
Remember partial forfeiture is possible and if it is with regards to an immovable property, make sure the description in the court order is correct.