When parties marry in community of property all of their assets whether accumulated before or after their marriage form part of their joint estate and when they divorce, all the assets gets divided between them equally. This also includes any pension/provident fund benefits accumulated up to date by one or both parties.  

There are however so many spouses who divorce that feels that a division of assets would be unfair should the other spouse benefit from them and therefor Section 9 of the Divorce Act 70 of 1979 came into operation on 1 July 1979.

This section provides that, when a divorce is granted on the basis that the marriage broke down irretrievably, the Court may on request of one of the parties make an order that the other party should forfeit the benefits of the marriage in community of property either partially, or in whole, after the court considers three factors namely:

1. The short duration of the marriage;

2. The circumstances that gave rise to the breakdown of the marriage;

3.  Any substantial misconduct on the part of any of the parties;

The court will grant such an order when it is satisfied that if the order for forfeiture is not granted, the other party will be unduly benefited from the marriage.

There are not a specific time frame which the court sees as a “short marriage” or specific list circumstances that gave rise to the break down of the marriage and therefor each case will be dealt with on their own merits.

There was, however, a recent ground breaking case, where the Court granted forfeiture of benefits in the unreported case of CMM v AMSM, case number 13966/2020 due to adultery on the part of the Plaintiff. The Court saw the Plaintiff’s infidelity and adultery during the duration of their marriage as substantial misconduct, and therefore found she will not be entitled to claim any of the Defendant’s benefits.

The claim for forfeiture can be very intricate and therefor it would be advisable to see a Divorce Attorney to assist you with such a claim.