The legal consequence of marriage in community of property is that at the dissolution of such marriage, there shall be equal division of the joint estate. However, in some cases the court can deviate from the legal consequences that flow from marriage in community property and grant an order for forfeiture of patrimonial benefits of marriage.

Section 9(1) of the Divorce Act 70 of 1979. Section 9(1) read as follows:

“(1) When a decree of divorce is granted on the ground of the irretrievable break-down of 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, if the court, having regard to the duration of the marriage, the circumstances which gave rise to the break-down thereof and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefited.”

The above section allows a court on application to grant an order for forfeiture of matrimonial benefits. This is not an automatic application, the party must plea in their pleadings that should an order of forfeiture of matrimonial benefits not be granted, the other party will unduly benefit. The Courts must consider three fundamental factors before granting a forfeiture order:

1. The duration of the marriage.
2. The circumstances which gave rise to the breakdown of the marriage; and
3. Any substantial misconduct on the part of either of the parties.

 In the case of Wijker v Wijker (325/92) [1993] ZASCA 101; [1993] 4 All SA 857 (AD) (26 August 1993), the court held that

      “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.”

In the case of V.R v V.R (4939/2020) [2023] ZAFSHC 68 (1 March 2023), the court said the following;

“The enquiry is, accordingly, a two-stage process. The first entails an assessment of the nature and extent of the alleged benefit, whilst the second entails an assessment of whether the benefit is undue. It follows that the second enquiry is only necessary if the first one has been positively established. The value judgment that is entailed by the assessment of whether or not the benefit is undue may not be clouded by considerations of fairness. The matter is not about achieving fairness between the parties, it is about the application of a legal principle………the defendant bears the onus of persuading the court that there ought to be a deviation from the legal consequences that flow from a marriage in community of property in relation to the division of the estate on the terms that he suggests. “

In summary when considering an application for forfeiture of patrimonial benefits of marriage the court must determine the following:

1. Firstly, determine whether or not the party against whom the order is sought will in fact be benefited, which requires an assessment and the extent of the alleged benefit.
2. Secondly, the court is to determine 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 section 9(1).”

The party seeking forfeiture of patrimonial benefits bears the onus of persuading the court that there ought to be a deviation from the legal consequences that flow from a marriage in community property in relation to the division of the estate on the terms that she/he suggests.