Pretoria - Although the court earlier ruled that a cheating wife would forfeit half of her husband’s pension money as part of the divorce order, the judge did not lay down the law on the subject.
Forfeiture of benefits is not unique and has been part of our law for a very long time.
This is according to well-known divorce lawyer, Selwyn Shapiro, who pointed out that a claim for forfeiture of benefits arising out of marriage in community of property stems from the provisions of Section 9 of the Divorce Act of 1979.
This section states when a decree of divorce is granted on the grounds of the irretrievable breakdown of a 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.
The court will, however, have 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. If the court is satisfied that, if the order for forfeiture is not made, one party will in relation to the other unduly benefit, the court can make such an order.
Shapiro, who was not the lawyer involved in the court case reported by the Pretoria News last week, explained that an order for forfeiture was the exception and not the norm. The law also does not favour sex and an order for forfeiture can be made against anyone who falls within the ambit of the law to forfeit benefits.
“A division of a joint estate is a natural consequence of a divorce where the parties are married in community of property. However, a party to the divorce proceedings who believes that the other party should not share in the joint estate may request forfeiture of the benefits out of the marriage (in community of property) when issuing an order of divorce. But this is the exception and not the norm.
“Such a claim is not easily succeeded with and parties should be cautioned in proceeding with such a claim. This is because the court will not merely take into account the reasons for the break-up of a marriage and the other parties’ misconduct. The court will take into account the duration of the marriage between the parties,” Shapiro said.
The Gauteng High Court, Pretoria, earlier ruled that a wife, who cannot be identified as it is divorce proceedings, would forfeit half of her husband’s pension money because she left him and their children for other men.
The woman turned to court for a divorce order, which would include that half of her husband’s pension be paid to her.
The husband, in turn, said his “cheating wife” should not get a cent and that the half of his government pension fund, which a spouse married in community of property is usually entitled to receive, should be forfeited due to her conduct over the years.
Shapiro said he had, however, been involved in similar cases over the years where forfeiture orders were granted against the wife, married to her husband in community of property. But he warned that these orders were not simply for the taking and that a lot of factors had to be taken into consideration.
Community of property is a universal economic partnership of the spouses. All their assets and liabilities are merged in a joint estate, in which both spouses, irrespective of the value of the financial contributions, hold equal shares.
In most instances, parties entering into a marriage do not make equal contributions towards the joint estate for a variety of reasons, which can include that one spouse may earn more than the other or one may already own property at the time of getting married.
“As such, entering into a marriage in community of property is a risk that each spouse takes. The spouses will, on the date the joint estate is created, become joint owners of all the assets brought into the estate and will also share each other’s liabilities.”
Shapiro advised that couples should consider all these aspects when entering into a prenuptial agreement.
Pretoria News