South African divorce law permits courts to depart from the usual 50/50 division of marital assets in order to prevent an undeserved windfall to a spouse who caused or contributed to the breakdown of the marriage. Section 9(1) of the Divorce Act 70 of 1979 empowers a court, when granting a divorce for irretrievable breakdown, to order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other (in whole or in part) if, considering certain factors, the spouse in question would “unduly benefit” without such an order[1][2]. In practice, adultery and other forms of marital misconduct can be relevant to these forfeiture orders – but they are not automatic grounds on their own[3][2]. The courts take a nuanced, fact-specific approach, weighing the duration of the marriage, each spouse’s contributions, and the impact of any misconduct. Recent cases in South African courts (as reported on SAFLII and family law commentaries) illustrate how adultery or similar misconduct has factored into forfeiture of assets. Below is an analysis of the legal framework and key judgments, followed by a hypothetical application to the high-profile Andy Byron scandal to show how South African law might address similar facts.
Section 9(1) of the Divorce Act: Framework for Forfeiture
Section 9(1) of the Divorce Act sets out three factors that a court must consider when deciding whether to grant a forfeiture of patrimonial benefits[4][5]:
Duration of the marriage;
Circumstances that gave rise to the breakdown of the marriage; and
Any substantial misconduct by either spouse, and the fact that one spouse would be unduly benefited in relation to the other if forfeiture is not ordered.
Importantly, the court has a discretionary power – it may order forfeiture if satisfied that, absent such an order, one party will reap an undue benefit[4]. This is not an automatic or punitive remedy; its purpose is to prevent injustice by avoiding a situation where the “guilty” spouse profits from the marriage they wrecked[6][7]. South African courts have emphasised that forfeiture is not about moral retribution but about preventing unjust enrichment[6][7]. In Wijker v Wijker 1993 (A), the Appellate Division explained the two-step inquiry under section 9(1): first, determine factually whether the party against whom forfeiture is sought will in fact derive a benefit from the marriage if assets are split equally; if so, then decide, in light of the three statutory factors, whether that benefit would be undue[8]. Only if an undue benefit is established will a forfeiture order be granted[8][9]. Not all three factors need be present – any one of them can justify forfeiture, and they are not considered cumulatively as rigid requirements[10][11]. The court’s role is to make a value judgment on what is just, based strictly on the section 9(1) factors (not on general notions of fairness)[12][13].
Under South African matrimonial property regimes, in community of property marriages normally entail an equal division of the joint estate on divorce. In an out of community marriage with accrual, each spouse retains their estate but may share the growth of the other’s estate. A forfeiture order effectively deprives the guilty spouse of benefits they would otherwise receive by virtue of the marriage – for example, denying them part or all of their half-share of the joint estate, or their share of the other spouse’s pension or accrual, as the case may be[14][15]. The spouse seeking forfeiture bears the onus of proof to show the nature and extent of the benefit to be forfeited and why allowing it would be undue[16][17].
‘Substantial Misconduct’ in Context: Defining the Threshold
The most nuanced factor in the forfeiture analysis is “any substantial misconduct” on the part of either spouse. The Divorce Act does not exhaustively define “substantial misconduct,” but case law has fleshed out its meaning. In Z v Z [2015] ZAGPPHC 940, the High Court described substantial misconduct as “serious behaviour incongruent with the marriage relationship”[20]. This implies conduct that fundamentally deviates from the duties and norms of marriage – going beyond ordinary marital strife or trivial failings. South African courts have identified various examples of misconduct that may qualify, including adultery (infidelity), domestic violence or assault, malicious desertion or abandonment, habitual substance abuse, refusal to maintain one’s family, and other forms of financial misconduct[21].
For instance, in Molapo v Molapo [2013] ZAFSHC 29, a husband’s egregious neglect of his wife and children (failing to maintain them and even attempting to burn down the family home) was held to amount to substantial misconduct[22]. Likewise, Phenya v Phenya [2020] (GJ) confirmed that a deliberate failure to contribute financially to the joint household, when one is able to do so, can constitute substantial misconduct[23].
Critically, not every act of adultery or bad behaviour will meet the threshold – the misconduct must be weighty or “substantial” in its context. The courts have repeatedly cautioned that adultery per se is not automatically regarded as substantial misconduct for purposes of forfeiture[3][7].
In Wijker and other cases, it was noted that while adultery often precipitates the breakdown of a marriage, it should not be too overemphasised in isolation[24]. The misconduct must be so gross and obvious that it would offend the conscience of the court to let the offending spouse walk away with the benefits of the marriage[25][7]. This sentiment, originating from Matyila v Matyila 1987 (W), is frequently quoted: the conduct must be “so obvious and gross that it would be repugnant to justice to let the ‘guilty’ spouse get away with the spoils of the marriage.”[25][7].
In practical terms, an isolated lapse in judgment after a long, otherwise good marriage (for example, a one-off affair by a spouse who had for decades been faithful and contributed to the family) may not be deemed substantial misconduct warranting forfeiture[26]. This was the scenario in Engelbrecht v Engelbrecht 1989 (C), where the court held it could never have been the legislature’s intent that a wife who had supported her husband for 20 years should forfeit her share of the joint estate due to a single act of infidelity[26]. Similarly, the Supreme Court of Appeal in BS v PS [2018] cautioned that a court should not focus on an isolated incident of adultery to the exclusion of the overall circumstances like the marriage’s length and the parties’ contributions[24].
South African jurisprudence thus draws a line between ordinary marital misconduct (even if blameworthy) and “substantial” misconduct. The latter typically involves a pattern of serious wrongdoing or a singularly severe transgression that in justice should affect the patrimonial consequences of the divorce[21][25]. It also bears noting that the misconduct considered under section 9(1) need not be the cause of the marriage breakdown. The statute lists “any substantial misconduct” as a separate factor, meaning even misconduct that occurred after the relationship had soured (or which did not itself lead to the breakup) can be weighed[25].
For example, concealing assets, squandering marital funds, or harming the children’s well-being could potentially be relevant even if the marriage was already on the rocks. That said, courts are generally reluctant to delve into post-separation squabbles as a basis for forfeiture.
In T.N v S.N [2024] (Gauteng High Court), the husband alleged that after their separation his wife refused him access to the children, but the judge declined to treat that as part of the forfeiture analysis – noting it was a collateral issue best dealt with in separate proceedings, and not pleaded as a ground for forfeiture[27][28]. The focus remains primarily on conduct during the marriage (or leading up to its dissolution) that is relevant to whether one party would be unjustly enriched.
Balancing All Factors: Marriage Duration, Contributions and Undue Benefit
Section 9(1) requires the court to take a holistic view, considering the length of the marriage and the breakdown’s circumstances alongside any misconduct. The presence of misconduct does not automatically trump the other factors[3][29]. The court must still ask whether, given the marriage’s duration and each party’s role, the spouse against whom forfeiture is sought would unduly benefit without a forfeiture order[30][31].
Duration often plays a role in determining what is “undue.” As a general trend, short marriages make forfeiture easier to justify, especially if one spouse brought significantly more into the union or the other made minimal contributions. In a very brief marriage, an equal split might give a windfall to a spouse who barely participated in the joint estate’s accumulation. For example, in KT v MR 2017 (GP), a marriage lasting only 20 months, the husband had amassed most of his wealth before the marriage, and the court ordered a partial forfeiture so that the wife did not reap half of assets she hadn’t helped create[32].
By contrast, in long marriages, even if one spouse was at fault in the breakup, the court may be reluctant to disturb the normal equal division – since over many years both parties usually contributed in various ways (financially or non-financially) to the joint estate. In the landmark Wijker case, after a 35-year marriage the wife sought forfeiture due to the husband’s alleged misconduct, but the court found no substantial misconduct proven and refused forfeiture, effectively affirming that each kept their 50% share[33]. Longevity of the marriage can thus dilute the weight given to a single episode of bad behaviour; equity might suggest that a spouse who shared decades of their life, even if they transgressed at the end, is still entitled to their half.
Another critical consideration is each spouse’s contributions to the joint estate – though notably, the law does not require an equal contribution for an equal share. The default community property rule is that contributions (financial or otherwise) are merged for the benefit of the partnership. A forfeiture order is not simply a reward for the larger contributor or a remedy to unequal effort[34][35].
Courts have stressed that fairness or fault in the abstract is not a factor outside the section 9(1) criteria[13]. You cannot get a forfeiture order merely because you “contributed more” or because it feels fair – the statute does not include a catch-all fairness test[35][13]. However, differential contributions can come into play indirectly: if one spouse solely built or acquired certain assets, and the marriage was short or the other spouse gave nothing of comparable value, then indeed the latter spouse stands to benefit unduly by taking half.
In such cases, denying the full 50% share can be justified to avoid an inequitable result[19][36]. An illustration is C.M.M v A.M.S.M [2022] (Gauteng High Court), discussed below, where the wife had brought no assets into a 13-year marriage and in fact abandoned the family; the court found that if she were awarded 50% of the accumulated assets (a house and pension entirely funded by the husband), she would be benefitting solely by virtue of the marriage and not her own efforts, which would be “undue”[19][37].
Ultimately, the court exercises a value judgment considering all the section 9(1) factors in tandem[10][38]. Misconduct is weighed along with how long the parties were married and who contributed what to the estate, to decide if forfeiture is warranted. The question of “undue benefit” is key – South African courts have defined “undue” in this context as “unwarranted or inappropriate because excessive or disproportionate”[39][40].
In other words, is the benefit one spouse stands to receive disproportionate to their contribution or to what the other spouse deserves, such that it would be unjust to allow it? This was succinctly put in KT v MR: a benefit is undue if it is excessive or unwarranted under the circumstances[39]. The presence of substantial misconduct often tips the scales because if a spouse intentionally and severely violated the marriage, it may be repugnant for them to walk away with a full half-share[7]. However, if denying them the benefit would itself be unfair (for instance, stripping an elderly spouse of retirement savings after a lifetime of mutual contribution), the courts tread carefully. The following recent cases illustrate how courts have applied these principles in practice, especially where adultery or other misconduct was at issue.
Notable Recent Cases Involving Adultery or Misconduct and Forfeiture
C.M.M v A.M.S.M [2022] ZAGPPHC 713 (GP High Court) – Wife’s Adultery and Desertion
In this unreported Pretoria High Court case (decided 21 September 2022), a husband successfully obtained a forfeiture order against his wife due to her egregious misconduct[41][42]. The parties had been married in community of property since 2009. The wife (plaintiff in the divorce) had developed a pattern of desertion and infidelity: soon after the wedding, she frequently left the communal home for months at a time without explanation, at one point returning with a baby fathered by another man[43][44]. She made no meaningful contributions to the household or their two children from the husband’s prior relationship (whom he and his parents supported)[45][17]. By contrast, the husband paid the bond on the house, the car installments, and household expenses single-handedly[46][47]. The evidence showed the wife only stood to gain from assets she hadn’t helped acquire, as she “did not bring any tangible asset into the marriage” nor even contribute to raising the children[48]. Her brief returns home only worsened matters – for example, after one disappearance she came back with another man’s child, prompting the families to intervene[49].
The court found that the wife’s serial absences and infidelity were the primary causes of the irretrievable breakdown[50]. Her conduct was deemed “substantial misconduct” within the meaning of section 9(1)[37]. Notably, the judge highlighted that the wife could “only benefit from the dissolution of the marriage” and had contributed nothing of her own[51]. If she were to receive 50% of the jointly accrued assets, it would amount to an undeserved windfall at the husband’s expense[51].
Applying Wijker’s two-step test, the court first determined that the wife would in fact receive a benefit (half the estate) if no forfeiture were ordered[52][17]. Secondly, considering the 13-year duration of the marriage, the circumstances of breakdown (her desertion and adultery), and her misconduct, the court concluded that this benefit would be undue[53][37]. It was noted that the husband had been left to build up the assets alone for much of the marriage while the wife pursued extra-marital affairs[53]. In the result, the forfeiture order was granted: the wife forfeited her half of the husband’s pension interest in the Government Employees Pension Fund and her half of an immovable property, among other benefits[14].
She essentially lost any claim to the major assets of the joint estate, and was even ordered to pay the husband’s legal costs[54]. This case is a clear example where adultery coupled with abandonment was treated as substantial misconduct sufficient to justify a forfeiture of benefits. The wife’s egregious breach of marital duties and lack of contribution made it just to deny her the usual half-share[37].
B.R.B.M v R.K.B.M [2023] ZAGPPHC 403 (GP High Court) – Infidelity and Financial Neglect by Wife
Decided in June 2023, this Pretoria High Court matter (styled with anonymised parties) garnered attention for its tale of “Love, Betrayal, and the Law”[55]. Here, the husband was the plaintiff seeking forfeiture, and the wife the defendant resisting it[56].
The marriage was in community of property. Over the years, the wife had engaged in an extramarital affair and effectively walked out on the marriage, leaving the husband as the sole caretaker of their children[57][58]. She not only betrayed him emotionally but also failed to honour her financial obligations: for example, she neglected to pay agreed-upon shares of rates, taxes, and utilities for the family home[59].
In her testimony, the wife was evasive and inconsistent, at times unable to recall basic details of contributions she was supposed to have made[60]. Tellingly, she did not deny the husband’s accusations that she had an affair and left him in financial dire straits – her silence on these points was taken as an admission[61][57]. The husband, by contrast, gave a credible account of having paid most household expenses, the bond, and even being without intimacy for two years as the marriage deteriorated[62]. He testified that for the six years leading up to the divorce, the relationship had broken down to the point where they lived essentially separate lives under one roof[63].
The court found the wife’s evidence unreliable and accepted that she had indeed carried on an affair and shirked her responsibilities, causing the marriage to fail[64][65]. In legal analysis, the judge reiterated that when parties marry in community, each automatically owns 50% of the joint estate, regardless of who contributed more[66]. Forfeiture is the only mechanism to deviate from that equal split[34].
Under section 9(1), the inquiry was whether the wife would unduly benefit if she kept her 50% share in light of the misconduct and the marriage’s history[67]. The court noted that fairness per se is not the test – one cannot simply rebalance contributions without satisfying the statutory criteria[35]. However, it was clear here that the wife had substantially misconducted herself: the judge concluded that her financial abandonment of the family for 11 years (both during cohabitation and after leaving) and her adultery together constituted substantial misconduct[68][69].
Citing Molapo v Molapo, the judgment stressed that a parent’s “lack of care for [her] children and family” is a serious breach of marital duty[70] – and in this case the wife’s indifference to her children’s well-being (contributing virtually nothing to their upbringing for over a decade) was glaring[58][68]. In addition, the affair with a colleague (which the husband discovered “in the act”) was further proof of misconduct; the wife’s feeble “no comment” when pressed about the affair underscored her culpability[57].
Having established misconduct, the court then examined undue benefit. By the time of trial, the wife had long ceased co-managing the estate – in fact, she had upgraded her personal vehicle and lifestyle while the husband bore the family expenses[65].
The judge reasoned that if no forfeiture was ordered, the wife would walk away with half of assets that she neither financed nor helped maintain for years[12][36]. This would be an “undue” benefit in relation to the husband’s contributions. The law does not require exact calculations of value in every case, and the court rejected the wife’s argument that the husband failed to prove the precise rand-value of the assets to be forfeited – it was enough that he identified the house and his pension as the benefits in question[71][36]. In the end, the court granted a significant forfeiture order: the wife was ordered to forfeit her 50% share in the couple’s immovable property (the matrimonial home), which was to become the sole property of the husband, and she also forfeited her half-share of the husband’s pension interest in the GEPF[72].
In practical terms, the husband retained the house entirely and the wife could not claim any of his pension, though the rest of the joint estate (if any) was divided equally. No order as to costs was made[72]. This case underlines that when one spouse chronically cheats and abdicates family support obligations, South African courts will not hesitate to let them “walk away with little or nothing”[73] by way of marital benefits.
T.N. v S.N. [2024] ZAGPJHC 703 (Gauteng High Court, Johannesburg) – Failed Forfeiture Claim where Misconduct Not Proven
This July 2024 judgment (Johannesburg High Court, per Wanless J) illustrates the flip side: adultery allegations alone, without convincing evidence and in the context of a troubled short marriage, did not result in forfeiture[3][74]. The marriage in this case lasted about 4 years (2015–2019)[75].
The husband (T.N.) sought a forfeiture order against his wife, accusing her of a litany of misconduct: he claimed she was verbally and emotionally abusive, denied him sex, and had an extramarital affair during the marriage[76][77]. He painted himself as the primary breadwinner and alleged the wife only married him for financial gain[78][79].
The wife (S.N.), however, countered that the husband was the abuser (emotionally and even physically) and that she had left the home due to his mistreatment while pregnant[80]. She also maintained that they had agreed she would be a stay-at-home mother, as childcare was needed and she could not work during a complicated pregnancy[81]. Indeed, by trial the wife had already conceded to forfeiting certain assets (her share in three properties the husband owned), which narrowed the dispute to mainly the husband’s pension and one remaining house[82][83].
Judge Wanless had to sift through conflicting accounts and scant corroboration. He noted that the marriage was “troubled from its inception” – both parties admitted serious problems from even the first night of the wedding[84]. This undermined the husband’s attempt to pin the breakdown on later incidents of alleged misconduct.
Crucially, the court found the husband’s evidence of the wife’s adultery and denial of conjugal rights unreliable and unproven on a balance of probabilities[85][3]. If an affair did occur, by his own account love and affection between them had already dissipated, so it was not clearly the decisive cause of breakdown[85][3]. The judge went further to state a general principle (echoing earlier case law): “adultery alone, even if proven, is not necessarily a valid reason for forfeiture. Each case must be decided on its facts.”[3].
In this case, the facts showed mutual marital dysfunction rather than one-sided malice. The husband’s broad allegations of being financially exploited also fell flat – he had made contradictory pleadings and failed to produce supporting evidence for many claims[86][87]. Meanwhile, the wife’s non-financial contributions (raising their children and running the household) had to be given due weight[88][89]. The court recognised that while the wife hadn’t been employed, she contributed in other ways, and this could offset the husband’s argument that he “paid for everything”[90][91].
On the legal requirements, the judge referenced the same authorities we’ve discussed (Wijker, Z v Z, Phenya etc.) to confirm the approach: the court must first identify a benefit and then assess if it’s undue considering duration, breakdown reasons, and misconduct[92][93]. Here, a benefit to the wife did exist (roughly calculated at R406,000, representing half of certain assets including the husband’s pension)[94].
But on the question of misconduct, the court found that if the wife had misbehaved, it did not rise to the level of “substantial.”[93][95] Her alleged adultery and abuse were not convincingly proven, and given the “fundamentally flawed” marriage from day one, the breakdown could not be attributed neatly to her alone[27][96]. Moreover, the husband failed to meet the burden of proof – mere allegations without credible, corroborated evidence were insufficient for so serious an order[97][98]. Judge Wanless stressed that the onus lies with the spouse claiming forfeiture to prove substantial misconduct with concrete evidence, not just he-said-she-said accusations[99][98].
In summary, the court was not satisfied that the wife’s half-share (beyond the properties she would already forfeited by concession) would be an undue benefit[100][101]. The marriage was relatively short, but the blame was shared and the wife had played her part at home. The final order granted the divorce and recorded the wife’s agreed forfeiture of three immovable properties to the husband, but allowed her to keep her 50% share of the husband’s pension (as per the normal rule)[101]. Each party bore their own legal costs[102]. This case is a useful reminder that South African courts require substantiated, significant misconduct before stripping a spouse of their patrimonial benefits. Adultery claims, in particular, will be scrutinised carefully – if they are not clearly proven or if they occurred in a context where the marriage was already effectively dead, a forfeiture order may be refused[3][95].
M v M [2023] ZASCA 75 (Supreme Court of Appeal) – Adultery in a Long Marriage and Partial Forfeiture
A notable recent Supreme Court of Appeal (SCA) decision on forfeiture is M v M, delivered on 26 May 2023[103][104]. The parties in this case had a long-term marriage (married in 1985, divorced in 2020). The wife sought a partial forfeiture order against her husband in respect of her pension benefits – essentially, she wanted him to forfeit his 50% share of her pension interest in the division of the joint estate[105].
The backdrop was the husband’s serious misconduct during the marriage: he had formed an adulterous relationship (which he refused to end despite the wife’s pleas) and even fathered a child with his mistress[106]. The wife had remained with him for some time despite the affair, but her tolerance had limits – evidence showed she only learned of the full extent of the affair in 2007, and she did not condone it once discovered[107][108].
In addition, there were allegations that the husband had failed to contribute fairly to the household expenses, placing a greater burden on the wife (though the precise financial history was complex)[106]. The trial High Court had dismissed the wife’s forfeiture claim, and a full bench of the High Court on appeal also ruled against her, oddly suggesting that she had “condoned” the husband’s adultery by remaining in the marriage – a finding made mero motu (of the court’s own accord) without it being pleaded[109][110]. The SCA took a different view and ultimately upheld the wife’s claim, ordering that the husband forfeit his entitlement to her pension share[111].
Justice Mbatha, writing for a unanimous SCA bench, reaffirmed the core principles of section 9(1) as outlined in Wijker[112][113]. The judgment underscored that even though South Africa is a no-fault divorce jurisdiction, misconduct is still relevant in considering forfeiture under the “circumstances of breakdown” and “substantial misconduct” factors[112].
The SCA criticised the lower court for focusing on an “isolated incident of adultery” without duly considering the duration of the marriage (31 years) and the overall circumstances[24]. It was not just one fling at stake here – the husband’s affair was a prolonged, known relationship that produced a child, causing deep humiliation and damage.
Moreover, the SCA found the lower court’s talk of condonation misguided: the record showed the wife never forgave or accepted the ongoing affair; she in fact took the husband to counselling and even fired the mistress (who was employed in their business) once she found out[107][114]. The SCA ruled it was a misdirection to introduce condonation when it wasn’t pleaded, and that the High Court had “misunderstood the concept of a value judgment” under section 9(1)[109][115]. In short, the High Court had not properly applied the two-stage Wijker analysis and had taken into account irrelevant or incorrect facts.
On the merits, the SCA concluded that the husband’s conduct was indeed gross misconduct that weighed in favour of forfeiture[25]. Citing Matyila and Wijker, the court reiterated that to justify forfeiture, the misconduct must be so egregious that it would be unjust for the guilty spouse to share in the benefits of the marriage[25]. Here, over a 30-year marriage, the wife had been a faithful partner who contributed (the specifics of contributions aren’t detailed in the excerpt, but given she had a substantial pension, she clearly worked and saved), while the husband not only betrayed her but also siphoned time and resources to another relationship.
The SCA held that the High Court had erred by not finding the husband’s adultery (and related behaviour) to be substantial misconduct and by not recognizing that allowing him to take half of the wife’s pension would unduly benefit him in light of that misconduct[116][26]. Importantly, the SCA also noted that the High Court should have confined itself to the pleaded issues – raising the theory that the wife “waived” her rights by staying married was improper and not supported by evidence[109][110].
In conclusion, the SCA set aside the previous judgment and ordered that the wife’s partial forfeiture claim succeed: the husband was to forfeit any share of the wife’s pension benefits in the division of the joint estate[111]. In effect, although the joint estate (including other assets) would still be divided, the husband would get no portion of the wife’s pension. This outcome demonstrates that even in a long marriage, if the circumstances warrant – e.g. prolonged, blatant adultery combined with prejudicial conduct – the “guilty” spouse can be deprived of certain benefits. The SCA’s intervention also reinforces that courts must follow the statutory framework closely, avoiding unpled defences and ensuring all three factors (length, cause of breakdown, misconduct) are weighed together[113][117]. The case stands as a strong precedent that substantial misconduct (like carrying on a secret second family) in a long marriage can tip the scales toward forfeiture, especially if the result of equal division would otherwise offend one’s sense of justice.
M.C.N v G.M.L.N (born M.) [2024] ZAGPPHC 516 (GP High Court) – Husband’s Misconduct (Crime and Non-Support) Leads to Forfeiture
Finally, this June 2024 judgment from the Pretoria High Court highlights that marital misconduct is not limited to infidelity – gross financial and moral failings by a spouse can also prompt forfeiture. In M.C.N v G.M.L.N, the wife was the economically active spouse with a substantial pension, and the husband had contributed little and engaged in unlawful behaviour.
The couple had been married for 24 years on paper, but evidence showed that their marital relationship had effectively broken down after only about 6 years (they had lived separate lives in the same house since 2006)[118][119]. The husband alleged the wife committed infidelity and neglected him, but the court found these claims were not credible[120][121].
Instead, the evidence revealed that the husband had been involved in drug dealing and alcohol abuse, brought crime into the household, and failed to support the wife and child. In fact, he admitted that the wife had moved out of the bedroom in 2006 and that he would intermittently abandon the home thereafter[118][122].
The wife, by contrast, emerged as the sole breadwinner and a “stable stalwart” who single-handedly raised their child and kept the family afloat financially[123][124]. She even took on side jobs (selling homemade goods) to supplement their income because the husband contributed nothing substantial[125][123]. Tellingly, by the last few years of the marriage, the husband had completely stopped any financial support – during the COVID-19 period he provided no money at all[124].
There were also instances of abusive conduct: he locked the wife out of the house on one occasion and was allegedly verbally and emotionally abusive (he denied some abuse, but claimed he left to avoid “being a perpetrator of what is now called GBV,” a statement the court viewed with skepticism)[126][127].
Given these facts, the court had little difficulty characterising the husband’s behaviour as “substantial misconduct.” Not only did he fail in his duty to maintain his family, but his involvement in illegal activities put them at risk – the wife even found drugs in the home while doing laundry[121]. The judge cited the principle that one spouse cannot be allowed to “control and abuse the assets of a joint estate” to the exclusion of the other[128]. Here the husband had effectively abused the joint estate by draining resources (e.g. it was unclear how he funded his activities) and not sharing in the responsibilities[129][123].
Under section 9(1), the court first noted that clearly the husband would be “benefited” if the estate were split normally – he stood to gain half of the wife’s pension, a sizable sum (the resignation benefit value was over R1.5 million)[15][130]. The real issue was whether that benefit would be undue[39]. The court found it would indeed be “unwarranted or inappropriate” (echoing the definition of “undue” from KT v MR[39]) for this husband to take half, for several reasons:
(a) although married for 24 years, only the first 6 years were a functioning marriage – so the effective duration was short[131];
(b) the husband failed to support his family, especially in the last 4 years providing nothing[124]; and
(c) the wife had been the sole breadwinner throughout, even going above and beyond to earn extra income due to the husband’s dereliction[124]. In these circumstances, giving the husband 50% of the wife’s pension would be an undeserved payoff for his bad behaviour. The court emphasised that it considered only the statutory factors – “fairness or equity” in a general sense played no role, only the specific criteria in s 9(1)[132][13].
The result was a clear win for the wife: the husband was ordered to forfeit entirely his half of the wife’s pension interest in the Government Employees Pension Fund[15]. The rest of the joint estate was to be divided (and they had agreed on a cash payment for maintenance of a child, etc.), but the pension – often one of the largest assets – was protected from the non-contributing, misbehaving spouse[15].
The court had thus applied the forfeiture remedy to achieve a just outcome: the wife kept what was essentially her retirement money earned over years of employment, and the husband who had shirked and sinned financially did not get to reap a share of it. This case reiterates that “substantial misconduct” can take many forms – here, it was the combination of criminal activity, abuse, and failure to fulfil fundamental spousal duties. It also underscores that even if no adultery is involved, a spouse’s financial and moral neglect of the family can justify a forfeiture order to prevent an undue benefit.
The Andy Byron Scandal: Hypothetical Ramifications under South African Law
The highly publicised Andy Byron scandal – in which a tech CEO was caught in an extramarital affair on a “kiss cam” at a concert, leading to widespread humiliation of his wife – invites the question of how such conduct would be treated under South African divorce law. In South Africa, adultery is no longer a delict (since the Constitutional Court’s 2015 decision in DE v RH abolished civil damages for adultery), but it remains relevant in divorce proceedings as evidence of irretrievable breakdown and potential “substantial misconduct.” If Andy Byron and his wife were subject to South African law, the wife’s filing for divorce on the ground of his adultery would almost certainly succeed – adultery is classic proof of an irretrievable marital breakdown. The more pertinent issue is whether she could seek a forfeiture of patrimonial benefits against Andy due to his affair and the circumstances around it.
Given what we know of the scandal (a flagrant, public infidelity that brought embarrassment and pain to Andy’s spouse), a South African court might well view Andy’s behaviour as substantial misconduct within the meaning of section 9(1)[20]. It is “behaviour incongruent with the marriage relationship” of a high order – a brazen violation of the duty of fidelity, compounded by public exposure.
Courts have considered factors like humiliation of a spouse and blatant disregard for marital vows as aggravating the misconduct[25][107]. Andy’s wife would be able to argue that he intentionally and grievously breached the trust and good faith of the marriage, which qualifies as substantial misconduct (much like the husbands in M v M and Matyila who maintained extramarital relationships).
However, for a forfeiture order to be granted, the court would still need to be satisfied that if it does not order forfeiture, Andy would be unduly benefited relative to his wife[4]. This requires examining the matrimonial property regime and their respective contributions. Suppose Andy and his wife were married in community of property (as many couples are by default in South Africa, unless they signed an antenuptial contract).
Andy, being a CEO, likely accumulated substantial assets during the marriage – assets which, in a community, form part of the joint estate. If his wife was less wealthy or perhaps took on a supportive role (e.g. raising children or sacrificing career opportunities), a standard 50/50 split might actually mean she gains a significant share of Andy’s wealth (which is the intention of community property). In such a scenario, a forfeiture claim by the wife would be somewhat unusual – normally it is the economically stronger, innocent spouse who asks to deny the cheating spouse a share. If Andy is the primary asset-holder and also the miscreant, his wife might not need forfeiture to get justice; the ordinary law already entitles her to half the joint estate, effectively rewarding her loyalty and compensating for his wrongdoing in a way. In fact, Andy himself would not be “unduly benefitted” by the default division – rather, he would be paying the price of his misconduct by losing half of his estate to her (which is appropriate and not undue from her perspective).
Now consider if they were married out of community with accrual, which is common for high-net-worth individuals. In that regime, at divorce the spouse with the smaller estate growth can claim from the one with larger growth. If Andy’s wife had a modest accrual and Andy’s estate grew astronomically, she could claim a portion of the difference. Here again, she is the one gaining a benefit (rightfully so). She would not argue that Andy is unduly benefitting from the accrual – rather, Andy might argue that she is getting a lot of his money (but that is the regime they chose). Forfeiture in an accrual context could be used if, for example, Andy’s wife had the larger accrual and wanted to prevent him from claiming against her. If, hypothetically, Andy’s wife was independently wealthy (say she built up a fortune or inheritance larger than Andy’s accrual), and Andy’s misconduct was the reason for divorce, she could ask the court to order that Andy forfeit his accrual share that he would otherwise be entitled to from her estate.
This would mirror cases like M v M and M.C.N v G.M.L.N, where the wives had assets (pensions) and the husbands were the ones who would have benefitted absent forfeiture[105][15]. Under South African law, the court would examine the three factors: the Byron marriage’s length, the circumstances of breakdown (a very public affair, causing reputational and emotional harm), and any other misconduct. If Andy’s wife’s estate were significantly larger due to her own efforts, she would argue that Andy should not reap the benefit of her wealth after betraying her so egregiously. A court could find that Andy’s behaviour was “substantial misconduct” and that for him to receive, for example, part of her estate or investments would be an “undue benefit” in light of that behaviour[7].
Even if Andy was the richer spouse, his wife might still seek some form of forfeiture as a moral victory – for instance, she could request that he forfeit specific assets that have sentimental or practical importance to her. South African courts can order partial forfeiture. For example, if there was a house or particular property that would normally be split, the court could award it wholly to the innocent spouse.
This happened in B.R.B.M v R.K.B.M, where the family home was given entirely to the faithful spouse[72]. In Andy’s case, perhaps the wife could ask that she exclusively keep certain assets (like the marital home) without offset to Andy, arguing he would otherwise unduly benefit from half its value despite causing the divorce. The success of such a claim would depend on showing that not granting it lets Andy walk away with something disproportionate.
If the marriage was of long duration and both partners contributed in various ways, the court might not deem the wife’s half-share to Andy “undue” – sharing even with a cheating spouse is the norm unless clearly unjust. However, if the marriage was relatively short-lived (for instance, if the Byrons had been married only a few years when this affair happened) or if Andy’s wife could show that she actually brought significant assets into the marriage that Andy would take half of, then her case for forfeiture strengthens considerably. A short marriage coupled with blatant misconduct and one-sided contribution is a classic recipe for forfeiture[133][131].
Procedurally, Andy’s wife would need to plead forfeiture in her divorce summons and present evidence of his misconduct (which, given a viral video exists, would be straightforward to prove), as well as evidence regarding the estates to show the benefit he’d otherwise receive. The court would then exercise its discretion. Notably, South African judges do not consider “punishment” per se, but they do consider the equities.
In a case as sensational as Andy Byron’s, a judge might be implicitly influenced by the flagrancy of the misconduct. The law, as we have seen, allows consideration of not just the fact of adultery but the nature of the misconduct – e.g. was it ongoing? Was it done with cruelty or public shame? Those could be aggravating. Public humiliation of the spouse could arguably be a facet of misconduct (a court in CM v EM 2019 remarked that airing dirty laundry and embarrassing a spouse can count toward misconduct in divorce). Andy’s scenario checks that box.
In summary, under South African divorce law, Andy’s adultery and scandalous behaviour would firmly establish the irretrievable breakdown of the marriage and qualify as substantial misconduct.
The question of forfeiture would hinge on the patrimonial consequences: who stands to benefit from the default asset division? If by default Andy would receive a share of something belonging to his wife (or a share disproportionate to what he contributed), the court could well order him to forfeit those benefits in favour of his wife[134][15].
If instead the wife is the one primarily benefitting from Andy’s wealth (as is likely), she probably would not need a forfeiture order – the normal equal division already penalises Andy by enriching her, which is a just outcome.
South African courts would not strip a cheating spouse of everything as punishment, but they aim to ensure the innocent spouse is financially protected and that the adulterer does not unfairly profit from the marital partnership they undermined[6][73].
In any event, Andy’s wife would be well-advised to seek legal counsel on a forfeiture claim, and cases like B.R.B.M v R.K.B.M and M v M show that courts do have teeth to prevent a badly behaving spouse from walking away richer.
The Byron saga thus, when transposed to South African law, underscores the principle that while marital misconduct is not per se a ticket to more money for the innocent spouse, it can be the deciding factor to deny the guilty spouse the benefits of an equal share[3][2].
The ultimate goal in such cases is to reach a result that is equitable and reflects the justice of the matter, ensuring that a spouse like Andy Byron would not be unduly rewarded in the financial settlement of a marriage he chose to betray.
Sources:
- Divorce Act 70 of 1979, Section 9(1)[1][31]
- Wijker v Wijker 1993 (4) SA 720 (A)[8][135] – leading case on forfeiture test.
- Engelbrecht v Engelbrecht 1989 (1) SA 597 (C)[26] – adultery after long marriage not automatically penalised.
- Matyila v Matyila 1987 (3) SA 230 (W)[7] – “obvious and gross misconduct” standard.
- Moodley v Moodley 1989 (1) SA 597 (D) – forfeiture granted after ~20-year marriage for severe misconduct[136].
- Molapo v Molapo [2013] ZAFSHC 29[22][70] – failure to support family as misconduct.
- Botha v Botha [2006] ZASCA 6 – only Sec 9(1) factors to be considered (no added fairness factor)[113].
- BS v PS [2018] ZASCA 37[24] – caution against focusing on one affair versus the whole marriage.
- KT v MR 2017 (1) SA 97 (GP)[39] – definition of “undue” benefit; short marriage, partial forfeiture.
- C.M.M v A.M.S.M [2022] ZAGPPHC 713[41][37] – wife forfeits assets due to adultery and desertion.
- B.R.B.M v R.K.B.M [2023] ZAGPPHC 403[57][72] – forfeiture granted: wife’s affair and 11-year abandonment.
- T.N v S.N [2024] ZAGPJHC 703[3][89] – forfeiture denied: allegations of adultery unproved, short unhappy marriage.
- M v M [2023] ZASCA 75[135][109] – SCA allowed partial forfeiture of husband’s share (husband’s long-term adultery).
- M.C.N v G.M.L.N [2024] ZAGPPHC 516[137][15] – husband forfeits share of wife’s pension due to criminality and non-support.
- Family Laws South Africa blog by Bertus Preller – case summaries and analyses: e.g. “Cheating wife forfeits benefits” (CMM v AMSM)[37], “Love, Betrayal…” (BRBM v RK)[57][72], “Lessons from T.N v S.N”[3][20].
- De Rebus (March 2023), “Forfeiture in divorce” – overview of forfeiture law and recent cases[21][7].
[2] [5] [6] [7] [21] [31] [32] [73] Forfeiture in divorce – De Rebus
[3] [27] [28] [76] [77] [78] [79] [80] [81] [85] [96] T.N v S.N (14166/2019) [2024] ZAGPJHC 703 (22 July 2024)
[8] [12] [22] [33] [34] [35] [36] [55] [56] [57] [58] [59] [60] [61] [62] [63] [64] [65] [66] [67] [68] [69] [70] [72] Love, Betrayal, and the Law: A Tale of Forfeiture and Financial Deprivation in Matrimonial Property. – Family Laws South Africa
[10] [20] [23] [38] [74] [75] [82] [83] [84] [86] [87] [88] [89] [90] [91] [92] [93] [94] [95] [97] [98] [99] [100] [101] [102] Forfeiture of Benefits in Divorce: Lessons from T.N v S.N (14166/2019) [2024] ZAGPJHC 703 (24 July 2024). – Family Laws South Africa
[11] [13] [15] [39] [40] [118] [119] [120] [121] [122] [123] [124] [125] [126] [127] [129] [130] [131] [132] [133] [137] M.C.N v G.M.L.N (Born M.) (1629/2022) [2024] ZAGPPHC 516 (7 June 2024)
[24] [25] [26] [29] [103] [104] [105] [106] [107] [108] [109] [110] [111] [112] [113] [114] [115] [116] [117] [128] [134] [135] M v M (022/2022) [2023] ZASCA 75 (26 May 2023)
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here.