Social conversations: What is forfeiture of assets in a divorce?
Guest: Shani van Niekerk is a senior associate at Adams & Adams' CPL department.
In most divorces, either one of or both the parties feel wronged and aggrieved by either having to share their assets, or having any assets included in the calculation of the accrual.
The Pretoria High Court recently ruled that a woman’s infidelity amounted to substantial misconduct and, as such, she forfeited her right to share in her husband’s pension fund. The judgment received extensive media coverage and divorce attorneys are now inundated with queries regarding forfeiture.
It is quite correct that our law allows a court to make an order that one party forfeits the patrimonial benefits of a marriage. This means that a specific asset or even all benefits can be forfeited, regardless of the content of the parties’ ante-nuptial agreement. This legal position is, however, nothing new and has existed for years.
Prior to the introduction of the Divorce Act, a forfeiture order was based on the principle that no one ought to benefit financially from a marriage that he/she wrecked. Under our current Divorce Act, conduct of the parties is but only one of the factors that a court will consider when deciding to grant a forfeiture order.
In terms of Section 9 of the Divorce Act, a 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 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.
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