Background: The Marriage and Subsequent Divorce Proceedings
The recent High Court judgment in M.J.L v L.O.L (22341/19; A288/2023) [2025] ZAGPPHC 331 (27 March 2025) provides valuable insights into how South African courts approach forfeiture of benefits in divorce cases, particularly when substantial misconduct is involved.
This case involved a couple married in community of property on 26 August 2000 in Polokwane. After 19 years of marriage, their divorce was granted on 26 August 2019, along with an order for the division of their joint estate. However, this seemingly straightforward divorce took an unexpected turn when the husband (Mr. L) applied for a variation of the court order to explicitly include his claim to 50% of his wife’s pension benefits.
It was only upon receiving this application that Mrs. L realised the full implications of the divorce order—that Mr. L would be entitled not only to half of their immovable property but also to a substantial portion of her pension interests. This revelation prompted her to seek legal advice, resulting in an application for rescission of the division of property aspect of the divorce decree.
Interestingly, the court granted a partial rescission, maintaining the divorce decree but setting aside the order regarding the division of the joint estate. This follows the principle established in the D v D (A3079/15) [2016] ZAGPJHC 31 (12 February 2016) case that partial rescission of divorce orders is permissible where the divorce decree is severable from proprietary relief. The court’s rationale, as Justice Kooverjie noted, was that it “serves the interest of justice to craft an order that permits the previously divorced status of the parties to continue, while affording a party to prosecute the other aspects of the claim.”
Following this partial rescission, Mrs. L was permitted to file a plea and counterclaim in the original divorce proceedings, focusing specifically on the forfeiture of benefits. Her counterclaim sought a partial forfeiture order against Mr. L, specifically regarding her immovable property and pension interests in the Government Employees Pension Fund.
The detailed testimony presented during the proceedings painted a picture of a marriage that had functionally ended years before the legal divorce. The parties had been separated since 2014, with evidence suggesting significant relationship breakdown due to Mr. L’s extramarital affairs, including a long-term relationship that resulted in a child born outside the marriage, as well as financial misconduct that undermined the joint estate.
This background set the stage for the court’s careful examination of whether the requirements for forfeiture of benefits under Section 9 of the Divorce Act, No. 70 of 1979 were satisfied in this particular case. The subsequent analysis would explore the duration of the marriage, the circumstances leading to its breakdown, and evidence of substantial misconduct all critical factors in determining whether one party would be “unduly benefited” if a forfeiture order were not granted.
Legal Framework: Section 9 of the Divorce Act and Forfeiture of Benefits
The M.J.L case revolves around the interpretation and application of Section 9(1) of the Divorce Act, No. 70 of 1979, which empowers courts to order the forfeiture of patrimonial benefits of marriage under specific circumstances. This provision states that when granting a divorce on grounds of irretrievable breakdown, the court may order that patrimonial benefits be forfeited by one party in favour of another, either wholly or in part.
For such an order to be justified, the court must consider three key factors: the duration of the marriage, circumstances leading to its breakdown, and any substantial misconduct by either party. Based on these considerations, the court must be satisfied that without a forfeiture order, one party would be “unduly benefited” in relation to the other.
The judgment references several precedents that have shaped the interpretation of Section 9. In Wijker v Wijker 1993 (4) SA 720 A, the Appellate Division (now Supreme Court of Appeal) established that determining whether a party would be “unduly benefited” involves a two-stage enquiry: first establishing whether a party would, in fact, receive a benefit (a factual enquiry), and then determining whether such benefit would be “undue” (a value judgment).
The court also referred to Engelbrecht v Engelbrecht 1989 (1) SA 597 C, which confirmed courts have wide discretion to order forfeiture in respect of the whole or part of the benefits. Additionally, the judgment drew on Mashola v Mashola [2023] ZASCA TS (26 May 2023) and B.LST v MSM (33568/20) [2023] ZAPPHC 1125 (14 September 2023) to clarify that “substantial misconduct” includes prolonged extramarital affairs and irresponsibly diminishing the patrimony of the joint estate.
A procedural issue addressed in the judgment was whether a forfeiture claim could be made after a divorce decree had already been granted. The court distinguished this case from Mothibedi Alfred Phokobye v Felicia Mosima Adelaide Nkhumishe [2024] (Full Bench decision of Gauteng High Court, 29 August 2024), where it was held that forfeiture relief must typically be sought at the time the decree of divorce is granted. In contrast, Mrs. L’s case involved a partial rescission of the original order, with the court directing her to file a plea and counterclaim in the divorce proceedings specifically to address the forfeiture issue.
The court also referred to Mathepe Mildred Togo & Paladi Piet Molabe and Eskom Provident Fund (29059/2014) [2016] ZAGPPHC 666 (26 July 2016) and M v M [2011] ZAGPPHC 155 (27 May 2011), which supported the approach of granting partial rescission where only the proprietary aspects of a divorce judgment are in dispute, allowing the divorced status to remain intact.
Sections 7(7) and 7(8) of the Divorce Act were also central to the judgment, as they govern the entitlement to a half share in the pension interest of the other spouse. Section 7(7)(a) specifically provides that in determining patrimonial benefits in divorce actions, “a pension interest of a party shall… be deemed to be part of his assets.” This legal framework formed the foundation for the court’s analysis of whether Mr. L should forfeit any benefits from Mrs. L’s pension fund and property.
Key Factors: Duration of Marriage, Breakdown Causes, and Substantial Misconduct
In determining whether to grant Mrs. L’s forfeiture application, Justice Kooverjie meticulously examined the three primary factors stipulated in Section 9(1): the marriage duration, causes of breakdown, and evidence of substantial misconduct.
The court first considered that the marriage lasted approximately 14 years, though testimony revealed most of these years were characterised by unhappiness. Despite being legally married in 2000, the parties lived separately for significant periods. Initially, Mrs. L resided with her husband’s family in Polokwane while he lived elsewhere. Even after moving in together in Lebowakgomo around 2005, the relationship deteriorated, leading to formal separation in 2014 five years before the legal divorce.
The judgment captured how financial inequities pervaded the marriage from its earliest days. Evidence showed Mrs. L was employed with the South African National Defence Force from 1997, supporting Mr. L financially before he began work as a teacher in 1999. After relocating to Polokwane in 2001, she became the primary breadwinner for not only herself and her daughter but also for her husband’s extended family residing in his parental home. Court testimony indicated she covered household expenses while receiving minimal financial support from her husband.
Perhaps most damaging to the marriage was Mr. L’s extramarital relationship, which produced a child born in 2002. Mrs. L only discovered this affair in 2010 when he brought the then 8-year-old child to the family home. The court noted this revelation caused significant emotional harm, yet Mr. L continued the relationship openly, frequently visiting his mistress in Pretoria. His bank statements, examined during cross-examination, confirmed regular financial support to his mistress and child transactions conducted without Mrs. L’s knowledge.
The judgment highlighted several instances of financial misconduct that the court found particularly troubling. Mr. L acquired multiple vehicles (a Ford Courier Bakkie in 2004, Ford Focus in 2009, Corsa in 2011, and Polo Vivo in 2013) without meaningful consultation with his wife. In one instance, Mrs. L paid R30,000 for the Corsa using her bonus and savings, yet the vehicle was registered solely in her husband’s name. Moreover, testimony indicated she was restricted from using these vehicles and was required to pay for fuel during family trips.
Financial secrecy emerged as a pattern in the relationship. When Mr. L received a R432,000 pension payout in July 2015, he neither informed his wife nor directed any portion toward their joint estate. Instead, he unilaterally decided to use these funds to improve his parental home. Similarly, he took out a R148,000 loan from Capitec Bank and entered debt review in 2016 both significant financial decisions made without Mrs. L’s knowledge or consent.
The immovable property at the center of the dispute a house in B[…] Gardens, Polokwane—was purchased by Mrs. L in 2014 for R495,000 after the couple had separated. Though Mr. L claimed he helped secure the bond approval by co-signing the application, the court accepted evidence that Mrs. L solely maintained bond payments and property expenses. The court noted the property’s value at R570,000 with an outstanding bond of R321,771, representing a potential benefit of R248,229 that Mr. L would receive without having contributed meaningfully.
Mrs. L’s daughter’s testimony proved compelling, corroborating her mother’s account of the relationship dynamics. She confirmed witnessing physical abuse, described discovering her stepfather’s affair, and verified that financial support allegedly from Mr. L actually originated from her mother, who would provide cash for him to pass along.
The court concluded that substantial misconduct had been established through evidence of prolonged extramarital affairs, financial irresponsibility that diminished the joint estate, emotional abuse, and the overall disrespect shown to Mrs. L throughout the marriage.
The Court’s Analysis: Two-Stage Enquiry for Forfeiture Claims
Justice Kooverjie’s judgment demonstrates the methodical application of the two-stage enquiry established in the Wijker case for determining whether a forfeiture order should be granted. This approach requires first establishing if the party against whom forfeiture is sought would actually benefit (a factual determination), followed by assessing whether such benefit would be “undue” (a value judgment).
In the factual enquiry phase, the court identified specific financial benefits Mr. L stood to gain without a forfeiture order. The immovable property purchased after separation for R495,000 had appreciated to a market value of R570,000, with an outstanding bond of R321,771—creating a net equity of R248,229 that would be divided equally under normal community of property rules. Additionally, Mrs. L’s pension interest in the Government Employees Pension Fund was estimated at R2,279,144. Without forfeiture, Mr. L would be entitled to approximately half of these assets, amounting to over R1.2 million.
The court found this factual benefit particularly problematic given the evidence that Mr. L made negligible contributions toward these assets. The property was purchased after separation, with Mrs. L solely responsible for bond payments and maintenance. Though Mr. L claimed he had taken out a life insurance policy to cover the bond, the court noted these payments were “minimal” compared to the overall financial burden borne by Mrs. L.
Similarly, while Mr. L had received his own pension payout of R432,000 in July 2015, evidence showed he had dissipated these funds without Mrs. L’s knowledge and without contributing to their joint estate. This unilateral decision to use his pension for improving his parental home, rather than building the couple’s joint assets, featured prominently in the court’s analysis.
Moving to the second stage determining whether Mr. L would be “unduly benefited”—Justice Kooverjie weighed the statutory factors against the established facts. The court was particularly disturbed by the pattern of disrespect manifested throughout the marriage. Mr. L not only conducted a long-term extramarital relationship but displayed what the court characterised as “audacity” in bringing his child born outside the marriage to his parents’ home, expecting Mrs. L to accept both the relationship and child without consideration for her emotional wellbeing.
Financial behaviors further supported the finding of undue benefit. The court highlighted Mr. L’s pattern of acquiring vehicles without meaningful consultation, restricting Mrs. L’s use of these assets, and manipulating her into signing purchase documents. His handling of personal finances taking loans and entering debt review without informing his spouse reflected a disregard for their community of property regime.
The testimony regarding Mrs. L’s financial support of not only herself and her daughter but also Mr. L’s extended family while he maintained another household underscored the inequity of permitting him an equal division of assets. The court emphasized that Mrs. L’s earnings were primarily directed toward household expenses while evidence suggested Mr. L directed his resources elsewhere, including to his extramarital relationship.
Justice Kooverjie determined that allowing Mr. L to claim half of Mrs. L’s property and pension after such conduct would constitute an undue benefit that Section 9 was designed to prevent. The court concluded that Mrs. L had “satisfied the requirements of Section 9(1) of the Divorce Act” and would be “prejudiced if the forfeiture order is not granted.”
The judgment emphasizes that forfeiture findings are not automatic consequences of marital misconduct but require courts to carefully assess whether specific statutory requirements have been met through a structured analytical approach. In this case, the court found compelling evidence across multiple dimensions emotional, physical, and financial to justify the partial forfeiture order.
Implications for Divorce Cases Involving Forfeiture of Benefits in South Africa
The M.J.L judgment offers significant guidance for legal practitioners and divorcing parties on forfeiture claims in South African matrimonial law. By granting a partial forfeiture order specifically targeting the immovable property and pension interests, the court demonstrates how Section 9 can be applied with surgical precision rather than as a blunt instrument affecting all marital assets.
This case reinforces that South African courts maintain a strong protective stance regarding pension interests in divorce proceedings. While Sections 7(7) and 7(8) of the Divorce Act typically ensure pension interests are treated as part of the joint estate, the M.J.L judgment confirms these assets remain subject to forfeiture considerations. The decision provides practical clarity on how courts evaluate pension benefits when faced with evidence that one spouse has dissipated their own pension while attempting to claim against their partner’s retirement savings.
The judgment resolves an important procedural question regarding the timing of forfeiture claims. By distinguishing from the Phokobye case, Justice Kooverjie established that while forfeiture claims should ideally be raised during initial divorce proceedings, courts may still consider such claims following partial rescission of a divorce order. This creates a limited but vital pathway for spouses who like Mrs. L initially proceed with uncontested divorces without fully understanding the financial implications, then seek to address property divisions through appropriate legal remedies.
For legal practitioners, the case offers a template for building successful forfeiture claims. The court’s emphasis on comprehensive financial evidence including bank statements, property valuations, and pension details—highlights the importance of thorough discovery in these matters. The judgment also demonstrates the value of corroborating testimony, as the daughter’s evidence regarding financial arrangements and witnessed misconduct significantly strengthened Mrs. L’s case.
The M.J.L decision particularly illuminates how courts assess “substantial misconduct” under Section 9. While extramarital affairs have long been recognized as potential grounds for forfeiture, this case illustrates how courts evaluate the totality of such relationships considering their duration, financial impact on the joint estate, and emotional consequences. The judgment’s emphasis on Mr. L’s open continuation of his extramarital relationship and his expectation that Mrs. L accept this situation provides guidance on how courts weigh not just infidelity itself but the surrounding behaviors.
Regarding financial misconduct, the judgment establishes important precedent for identifying behaviors that diminish the joint estate. The court’s detailed analysis of vehicle purchases, loans taken without spousal knowledge, pension fund dissipation, and unilateral financial decisions offers concrete examples of conduct that can justify forfeiture. This aspect of the ruling provides valuable parameters for assessing similar cases where financial misconduct falls short of criminal activity but nonetheless undermines the community property regime.
The case also offers insight into how courts evaluate power imbalances within marriages. The court’s consideration of Mrs. L’s role as primary breadwinner—supporting not only herself and her daughter but also her husband’s extended family while Mr. L diverted resources elsewhere demonstrates judicial willingness to look beyond formal financial contributions to more nuanced economic realities within relationships.
For divorcing parties, the judgment serves as a cautionary tale about the importance of full disclosure and consultation within marriages in community of property. Mr. L’s unilateral financial decisions—particularly regarding his pension payout and vehicle purchases ultimately contributed significantly to the forfeiture order against him. Similarly, his failure to meaningfully contribute to the immovable property while later claiming entitlement to it exemplifies conduct that courts may find justifies forfeiture.
The M.J.L case ultimately affirms that while South African matrimonial property law begins with the presumption of equal division in community of property marriages, courts retain significant discretion to adjust these outcomes when justice demands. This balanced approach ensures that the community of property regime remains a vehicle for fairness rather than a mechanism that could reward misconduct.
Questions and Answers
What legal provision governs forfeiture of benefits in South African divorce cases? Section 9(1) of the Divorce Act, No. 70 of 1979 governs forfeiture of benefits. This provision empowers the court to make an order that patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part, when granting a divorce on the grounds of irretrievable breakdown.
What three factors must a court consider when determining whether to grant a forfeiture order? A court must consider the duration of the marriage, the circumstances which gave rise to the breakdown thereof, and any substantial misconduct on the part of either party. These three statutory factors help the court determine whether one party would be “unduly benefited” if a forfeiture order is not made.
How did the Wijker case influence the court’s approach to forfeiture in the M.J.L judgment? The Wijker v Wijker 1993 (4) SA 720 A case established the two-stage enquiry that Justice Kooverjie applied. First, the court must determine whether the party against whom forfeiture is sought would actually benefit (a factual enquiry). Second, the court must assess whether such benefit would be “undue” in relation to the other party (a value judgment).
Can a forfeiture claim be brought after a divorce decree has already been granted? Yes, but only in limited circumstances. The M.J.L case distinguished itself from the Phokobye judgment, which held that forfeiture relief must typically be sought when the divorce decree is granted. Justice Kooverjie determined that where a partial rescission of the divorce order has been granted specifically regarding proprietary aspects, a subsequent forfeiture claim may be entertained within those rescinded proceedings.
What is meant by “partial rescission” of a divorce order? Partial rescission refers to setting aside only certain aspects of a divorce order while maintaining others. In the M.J.L case, following precedent from D v D and Togo cases, the court only rescinded the order regarding “division of the joint estate” while maintaining the decree of divorce itself. This approach serves the interests of justice by allowing parties to remain divorced while still resolving outstanding proprietary disputes.
How are pension interests treated in South African divorce proceedings? Under Sections 7(7) and 7(8) of the Divorce Act, pension interests are deemed to be part of a spouse’s assets when determining patrimonial benefits in divorce proceedings. In marriages in community of property, pension interests typically form part of the joint estate subject to equal division, unless a forfeiture order dictates otherwise.
What constitutes “substantial misconduct” sufficient to justify a forfeiture order? The M.J.L judgment, drawing on cases like Mashola and B.LST v MSM, confirms that substantial misconduct includes prolonged extramarital affairs and irresponsibly diminishing the patrimony of the joint estate. The court found that Mr. L’s ongoing affair, financial secrecy, unilateral financial decisions, and failure to contribute to joint assets all constituted substantial misconduct.
Can a forfeiture order be granted for only specific assets rather than the entire joint estate? Yes. The M.J.L judgment demonstrates that courts can tailor forfeiture orders to specific assets. The court granted forfeiture only in respect of the immovable property and pension interests, rather than ordering a complete forfeiture of all benefits. This targeted approach allows for proportionate remedies based on the specific circumstances of each case.
How does financial misconduct affect forfeiture determinations? Financial misconduct featured prominently in the M.J.L judgment. The court considered Mr. L’s unilateral decisions regarding his pension payout, vehicle purchases without consultation, loans taken without spousal knowledge, and failure to contribute to joint assets as significant factors justifying forfeiture. Such conduct diminishes the joint estate and can constitute substantial misconduct under Section 9.
What role does the duration of a marriage play in forfeiture determinations? Duration is one of the three statutory factors courts must consider. In the M.J.L case, the court noted the 14-year marriage length but also considered that the parties had separated five years before divorce and had lived apart for significant periods during the marriage. This suggests courts look beyond mere calendar duration to examine the effective length of the marital relationship.
How does a court determine whether a spouse would be “unduly benefited” without a forfeiture order? The “unduly benefited” determination involves comparing contributions to the joint estate against what each party would receive through standard division. In M.J.L, the court found Mr. L would receive approximately R1.2 million from assets he barely contributed to, while having dissipated his own pension and directed resources toward an extramarital relationship. This imbalance supported the finding that he would be unduly benefited without forfeiture.
Can post-separation acquisitions be subject to forfeiture orders? Yes. The M.J.L case demonstrates that assets acquired after separation but before divorce can be subject to forfeiture considerations. The immovable property at issue was purchased in 2014 after separation, yet the court included it in the forfeiture order, recognizing that in marriages in community of property, assets remain part of the joint estate until formal divorce regardless of when they were acquired.
What evidential burden must be met to succeed with a forfeiture claim? The party seeking forfeiture must provide sufficient evidence addressing the three statutory factors and demonstrating how the other party would be unduly benefited without forfeiture. In M.J.L, Mrs. L provided bank statements, testimony about financial contributions, property valuations, evidence of Mr. L’s extramarital relationship, and corroborating testimony from her daughter. This comprehensive approach established both misconduct and potential undue benefit.
How does South African law balance the community of property principle against forfeiture provisions? While South African matrimonial property law presumes equal division in community of property marriages, Section 9 of the Divorce Act provides an equitable mechanism to adjust this outcome when strict equality would produce unjust results. The M.J.L judgment exemplifies how courts exercise discretion to ensure the community of property regime promotes fairness rather than rewarding misconduct.
Can emotional abuse or disrespect constitute grounds for forfeiture? While not explicitly mentioned in Section 9, the M.J.L judgment suggests that patterns of disrespect and emotional abuse can contribute to findings of substantial misconduct. The court considered how Mr. L brought his child from an extramarital affair into the family home without regard for Mrs. L’s feelings, restricted her use of vehicles, and expected her to accept his relationship with another woman. These behaviours, combined with financial misconduct, supported the forfeiture determination.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline, iDivorce and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here.
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