B.R.B.M v R.K.B.M (19279/2019) [2023] ZAGPPHC 403 (5 June 2023)
On one hand, the Plaintiff (husband) sought an order of forfeiture of the patrimonial benefits against the Defendant (wife) on the basis that the Defendant would unduly benefit if such an order was not granted. On the other hand, the Defendant opposed the application and sought her share of the joint estate on the grounds that her 50% share in the joint estate had accrued to her because the marriage was concluded in community of property.
The Facts
The Defendant’s evidence in court was found to be unreliable and evasive. The Defendant contradicted herself on one or more aspects under cross-examination and mostly could not remember the things that she contributed to their house. The Defendant’s testimony was also found to be given in an evasive manner, and she could not remember pertinent factors. The Defendant admitted to not paying property rates and taxes, and electricity as agreed upon between the parties. The Defendant also did not deny the Plaintiff’s accusations of financial deprivation and an extramarital affair. The court found that the Defendant’s testimony was unreliable and riddled with improbabilities, and accordingly, her evidence was rejected.
The Plaintiff testified that he sought an order for the forfeiture of the patrimonial benefits because his contributions surpassed the Defendant’s in the joint estate. The Plaintiff claimed that he paid for most of the household expenses, including the bond on the house, and that the Defendant did not contribute as much as she should have. The Plaintiff also accused the Defendant of financial deprivation and an extramarital affair, which the Defendant did not deny. The Plaintiff testified that things were no longer well between the two parties for almost six years to the extent that they were not intimate for about 2 years. The Plaintiff also testified that the Defendant bought a television set and a music system. Under cross-examination, the Plaintiff stated that there was no discussion about financial affairs before marriage, and he agreed to pay the bond because the Defendant was earning less compared to him.
The court also noted that the Defendant’s testimony regarding her financial contributions to the joint estate was insincere and that she had upgraded her vehicles despite earning less. The court did not find the Defendant’s claim that she left the common household because she feared for her life to be persuasive.
The Law
Our legal system has long recognised that when spouses marry in community of property, all assets they acquired both prior to and during the marriage are combined into a single joint estate. As a consequence, this joint estate is jointly owned by both parties in the marriage, with each holding an undivided and equal share. In essence, they become co-owners of the joint estate.
The standard outcome of a marriage in community of property is that, upon divorce, the joint estate is equally divided between the parties unless a forfeiture order is partially or fully enacted against one of the parties. The legal stance is unequivocal: once the parties choose to marry in community of property, they both hold equal, undivided shares of the joint estate. The proportion of each party’s contribution to the joint estate is irrelevant; they both own the joint estate equally.
Inherent in this arrangement is the risk that, upon dissolution of the marriage, each party will depart with their 50% share of the joint estate, irrespective of their individual contributions. The only exception to this rule occurs when one party seeks a forfeiture of the other party’s 50% share of the joint estate.
The Divorce Act 70 of 1979 establishes a legal framework for the forfeiture of patrimonial benefits. According to Section 9(1) of the Divorce Act, In the event of a divorce decree granted due to the irretrievable breakdown of a marriage, the court may decree that one party forfeits the patrimonial benefits of the marriage in favour of the other, either entirely or partially. This can occur if the court, considering the duration of the marriage, the circumstances leading to its breakdown, and any substantial misconduct by either party, concludes that without the forfeiture order, one party would be unduly benefited at the expense of the other.
The above provision was clearly articulated by Van Coller AJA, as he was then, in Wijker v Wijker [1993] 4 All SA 857 (AD) at para 19 when he said:
“It is obvious from the wording of the section that the first step is to determine whether or not the party against whom the order is sought will in fact be benefited. That will be purely a factual issue. Once that has been established the trial court must determine, having regard to the factors mentioned in the section, whether or not that party will in relation to the other be unduly benefited if a forfeiture order is not made. Although the second determination is a value judgment, it is made by the trial court after having considered the facts falling within the compass of the three factors mentioned in the section”.
A court holds the discretionary power to either grant or deny the order of forfeiture. Additionally, it can decide whether the forfeiture applies to the entire benefit or just a portion of it. In making this decision, the court must consider whether one party would receive undue benefit if the forfeiture order is not granted. The question of fairness is not a factor in this context. Thus, a court cannot issue a forfeiture order simply because one party contributed more to the joint estate than the other during the marriage.
In the case of A.J.V v M.V (3389/2017) [2020] ZAGPPHC 154, the court notably declined to grant a forfeiture order when the marriage had lasted only 11 months. Conversely, in Moodley v Moodley
[2008] JOL 22279, a forfeiture order was granted after a marriage of over 20 years due to significant misconduct by the defendant. Similarly, in C.M.M v A.M.S.M, (13966/2020) [2022] ZAGPPHC 713 (21 September 2022) a forfeiture order was granted after a marriage of over 13 years due to substantial misconduct by the Plaintiff. However, in Wijker, the court refused to grant a forfeiture order after a 35-year marriage, as there was no evidence of substantial misconduct by the husband.
Substantial misconduct can encompass a variety of actions, from infidelity to financial neglect. For instance, in the case of Molapo v Molapo, (4411/10) [2013] ZAFSHC 29 the defendant notably failed to provide for the family. The court determined that the defendant’s “neglect of his children and family” were factors that constituted substantial misconduct. The cases mentioned indicate that there are no straightforward answers or solutions in matters of this nature. As such, the Court must employ a comprehensive approach, in accordance with relevant legal principles, to resolve the legal issue.
The burden of proof rests on the party seeking a forfeiture order. Therefore, the Plaintiff, in this case, needed to demonstrate the nature and extent of the benefit that the Defendant stood to unduly gain upon the dissolution of the marriage.
The Judge rightfully stated that the Court is to form a value judgment considering the facts within the scope of section 9(1) of the Divorce Act. It’s not necessary for all the factors mentioned in the provision to be present before a court can issue a forfeiture order. If one of the factors is identified, it follows that this Court may grant a partial or complete forfeiture order.
Despite the Defendant’s portrayal of herself as a responsible mother, her lack of concern for the well-being of her two-and-a-half-year-old child, left in the care of the Plaintiff for 11 years, was evident. Her response was simply that the Plaintiff was also a father. Furthermore, the Defendant did not contest the testimony that, since leaving the shared home 11 years ago, she had not contributed anything towards the children’s care, except for one occasion when she bought shoes for one child.
Indeed, the Plaintiff, as the father of the children, has a duty to care for them. The judge found the case of Molapo v Molapo to be relevant and applicable in this situation. In that case, the court determined that the defendant’s “lack of care for his [her] children and family” constituted substantial misconduct.
As a result, the Judge believed that the Defendant had financially deprived the Plaintiff and their children of support during their 11 years of cohabitation. This financial deprivation continued for another 11 years after the Defendant had left the shared home, as she continued to spend her money solely for her own benefit and lifestyle. In the Judge’s view, within the context of this case, this constituted substantial misconduct.
In regard to the extramarital affair, another significant misconduct alleged by the Plaintiff was that he caught the Defendant in the act with her colleague. Following this incident, the Defendant admitted to having been involved with her colleague for approximately 4 months. In her testimony, the Defendant dismissed this claim as untrue. However, when pressed under cross-examination about the possibility of the Plaintiff approaching her employer and the office of the Public Protector to report her workplace affair and request her transfer to another station without reason, her response was simply “no comment”. In my view, a “no comment” response is insufficient in such serious allegations.
Although the Defendant accused the Plaintiff of extramarital affairs in her pleadings, she did not elaborate on these claims in her testimony. The credibility of the Plaintiff carries more weight compared to that of the Defendant. In the Judge’s view, the Defendant committed further substantial misconduct in the form of an extramarital affair.
The Judge’s finding that the Defendant had committed substantial misconduct through financial deprivation and an extramarital affair did not conclude the matter. The remaining question was whether the Defendant would receive an undue benefit if a forfeiture order was not granted. A forfeiture order should not be granted merely to balance the fact that one spouse contributed more than the other to the joint estate. Moreover, the issue of fairness is not a consideration when deciding whether to grant a forfeiture order. The only factors to be considered are those outlined in section 9(1) of the Divorce Act.
The concept of undue benefit is broad and lacks a precise definition. Numerous factors must be considered to determine whether a benefit is undue. For instance, individually cashing out pension benefits and misusing them without the other spouse’s knowledge, or secretly selling assets from a joint estate while expecting to receive a 50% share upon the dissolution of the marriage, were viewed by the Judge as constituting an undue benefit.
In the Judge’s opinion, the Defendant could not forfeit any assets as she did not contribute any tangible assets to the joint estate. She did not contribute to the upbringing and education of the three children. Her benefit was solely derived from the dissolution of the marriage. The Defendant’s counsel argued that the Plaintiff did not prove the nature and extent (value of the house and pension) of any patrimonial benefit that could be forfeited, and therefore his claim should fail. The Judge disagreed. In the case of C.M.M v A.M.S.M, it was ruled that: “It is not a requirement that the defendant must prove the correct financial value of the house or property including the pension fund for which to succeed in his
claim”
Order:
The Court ordered the Defendant to forfeit her 50% benefits in the immovable property and the said property to became the sole and absolute property of the Plaintiff. Defendant was also ordered to forfeit her 50% pension fund benefits held in the Plaintiff’s pension fund in the Government Employees Pension Fund. No Order was made towards costs.
Summarised by Authored by Bertus Preller, a Family Law and Divorce Law attorney at Maurice Phillips Wisenberg in Cape Town. A blog, managed by Lawsplash, for more information on Family Law read more here.
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