Forfeiture of Patrimonial Benefits in Divorces

When a marriage in community of property, or one governed by the accrual system, comes to an end, the default legal position is that the parties share equally in the assets accumulated during the marriage. This principle of equal sharing reflects the partnership nature of marriage. However, the law also recognises that strict equal division is not always just. For this reason, section 9(1) of the Divorce Act¹ gives the courts a discretionary mechanism to depart from this default position by ordering that one spouse forfeit the patrimonial benefits of the marriage, either wholly or in part, in favour of the other.

Section 9(1) applies where a decree of divorce is granted on the ground of the irretrievable breakdown of the marriage. In such cases, the court is empowered to order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other. Importantly, this power is discretionary rather than automatic. A court will not grant forfeiture as a matter of course simply because a marriage has ended. In exercising this discretion, the court is directed to have regard to three specific factors:

the duration of the marriage;
the circumstances which gave rise to the breakdown of the marriage; and
any substantial misconduct on the part of either of the parties.

These three factors are not weighted equally or applied mechanically. Rather, they are considered together to answer the ultimate question posed by section 9(1): would one party be unduly benefited in relation to the other if the forfeiture order were not made? This “undue benefit” test lies at the heart of every forfeiture enquiry and, as discussed below, was authoritatively clarified in Wijker v Wijker.²

Section 9(2) imposes an important limitation on the court’s power. Where a marriage is dissolved on the ground of the defendant’s incurable mental illness or continuous unconsciousness, a forfeiture order cannot be made against that defendant. This exception recognises that a spouse who is unable, through no fault of their own, to sustain the marriage should not be penalised through the forfeiture of patrimonial benefits.

A recurring point of confusion in forfeiture litigation is precisely what property may be forfeited. The law is clear that a spouse cannot be ordered to forfeit what they themselves contributed to the marriage. Forfeiture applies only to the benefits derived from the marriage, not to a spouse’s own assets or contributions. The practical application of this principle differs depending on the matrimonial property regime:

In community of property, where total forfeiture is ordered against a spouse, that spouse receives only the assets they personally brought into the joint estate. If they contributed more than half of the joint estate, they are still limited to receiving half; what they forfeit is the right to share in the assets contributed by the other spouse.

Under the accrual system, the spouse whose estate reflects the larger accrual retains their own half of the difference between the accrual in each spouse’s respective estate. Forfeiture operates on the share of the accrual that would otherwise pass to the other party.

Specific categories of benefit have also been recognised as forfeitable, including the right to occupy premises under a statutory lease paid for by the other spouse,³ marriage settlements promised in an antenuptial contract,⁴ and pension interests, which are deemed to form part of the joint assets by virtue of Section 7(7) of the Divorce Act.

The leading authority on the application of Section 9(1) is Wijker v Wijker, in which the court set out a structured, two-stage enquiry:

Factual determination: the court must first establish, as a matter of fact, whether the party against whom forfeiture is sought would actually receive a financial benefit if the order were not made.
Value judgment: if such a benefit is found to exist, the court must then decide whether that benefit would be “undue”. This is not a free-standing moral assessment; it is made specifically by weighing the three statutory factors i.e., duration of the marriage, the circumstances of the breakdown, and any substantial misconduct.

Wijker is significant not only for this two-step framework but also for what it excludes from consideration. The court held firmly that general notions of “fairness” cannot be used to override the matrimonial property system the parties themselves chose at the outset of the marriage. In other words, a court cannot order forfeiture merely because it forms the view that one spouse contributed more to the couple’s overall wealth than the other. Forfeiture is not a tool for redistributing assets according to a judge’s sense of equity; it is a narrow remedy confined to the statutory factors and the undue-benefit test.

Analysis of the Section 9(1) Factors

1. Substantial Misconduct

South Africa operates a no-fault system of divorce, yet section 9(1) reintroduces fault as a relevant consideration specifically in the forfeiture context. The courts have, however, been careful not to allow misconduct to dominate the enquiry. In JW v SW,⁵ the court confirmed that a finding of substantial misconduct, such as assault or domestic violence, will not, on its own, justify a forfeiture order if other factors, such as the errant spouse’s contributions to the joint estate, outweigh that misconduct.

This principle was foreshadowed in Engelbrecht v Engelbrecht,⁶ where the court declined to order forfeiture against a spouse who had been faithful and supportive for twenty years, notwithstanding a later act of adultery. The court reasoned that it could not have been the legislature’s intention for decades of loyal contribution to be wiped out by a single instance of misconduct late in the marriage. The position may, however, differ where a marriage is of very short duration. In such cases, even relatively less severe misconduct may justify forfeiture, particularly where the facts suggest a “fortune hunter” seeking to benefit from a marriage entered into in bad faith.

2. Duration of the Marriage

The length of the marriage is treated as a significant, standalone consideration. Courts are generally reluctant to grant forfeiture in respect of long marriages, where both spouses have contributed (whether financially, through homemaking, or through raising a family) to the couple’s shared welfare over an extended period. This remains true even where one spouse’s financial contribution significantly exceeded the other’s, since non-financial contributions are recognised as forming part of the marital partnership.

3. Circumstances of the Breakdown

The circumstances surrounding the breakdown of the marriage require a nuanced enquiry into causation. In Swart v Swart,⁷ the court observed that conduct such as adultery or desertion may sometimes be a symptom of a deteriorating relationship rather than its root cause. Where both spouses bear roughly equal responsibility for the disintegration of the marriage, courts will typically decline to grant a forfeiture order, since the statutory scheme is not designed to punish one party for a breakdown to which both contributed.

Forfeiture in Customary Marriages

Forfeiture is not confined to civil marriages regulated by the Divorce Act. The Recognition of Customary Marriages Act (RCMA)⁸ expressly extends the court’s forfeiture powers to customary marriages. Section 8(4)(a) of the RCMA confers upon courts dissolving a customary marriage the same powers available under Section 9 of the Divorce Act.

There has been some academic debate as to whether forfeiture should apply to marriages governed strictly by customary law, given the distinct proprietary consequences that can arise under customary systems. Nevertheless, the prevailing view is that nothing in the wording of the RCMA excludes customary marriages from the scope of Section 9, and forfeiture accordingly applies equally in that context.

Procedural Considerations

Notably, forfeiture is not a remedy the court can grant of its own accord. It must be specifically pleaded and applied for by one of the parties.⁹ The spouse seeking the order carries the onus of proving both the nature and the extent of the benefit that ought to be forfeited. This is a factual burden that requires the applicant to place clear evidence before the court, rather than relying on general assertions of unfairness.

It is also worth noting that only benefits existing at the time of the divorce fall within the scope of a forfeiture order. A court cannot, for example, order the forfeiture of future growth in an asset such as a retirement annuity that only accrues after the divorce decree has been granted. The forfeiture enquiry is therefore fixed in time, assessed as at the date of dissolution.