By Cheralco Worship, Candidate Attorney
Category: Family Law

Introduction 
Many South Africans are in search of their happily ever after. Although many have been lucky enough to find theirs, there are still many cases where some have not been so lucky, and things don’t work out. There are many reasons why people get married; for some, it’s for love and companionship, some get married to have children, and others just get married for money. Whatever the reason, both parties enter into the marriage willingly and with a good understanding of what the terms are or should be. Be that as it may, it is still vital for parties entering into marriage to know the consequences of marriage and what their rights are in terms of their property and benefits.   

Matrimonial property regimes in South Africa
For those that find themselves among the few where things may not have worked out, divorce seems the only viable solution, especially those that may have unfaithful spouses may feel that it would be unfair for that particular spouse to benefit from the marriage upon divorce. Therefore, individuals must familiarize themselves with the various matrimonial property regimes and what they entail. For example, in South Africa, there are three kinds of marital property regimes, namely in community of property, out of community of property with accrual and out of community of property without accrual.   

The default matrimonial property regime in South Africa is in community of property, which means that the spouses’ estates become joint, and all assets and liabilities of both spouses accrued before or during the marriage form part of the joint estate. Unless the spouses utilize the alternatives available to them, either before or during the marriage, to make the matrimonial property regime out of community of property with or without accrual by way of an antenuptial or prenuptial agreement being entered into. Whereas out of community of property with accrual means that the spouses enjoy what is accrued for the duration of the marriage with the exclusion of specific assets in terms of the antenuptial or prenuptial agreement. In the case of out of community of property without accrual, the estates of the spouses are entirely separate from each other.    

Forfeiture of patrimonial benefits
Due to the default marital property regime being in community of property, it is the one that applies to most South African marriages. As a result, many South Africans who find themselves in a marriage where their partner was unfaithful or abandoned their marital home and are married in community may be reluctant to have their partner benefit from the marriage, more specifically, have a claim to their assets. In these cases, the aggrieved party may apply to the court for an order for the forfeiture of the patrimonial benefits by the other party.   

In terms of Section 9(1) of the Divorce Act, when granting a decree of divorce on the grounds that the marriage has irretrievably broken down, the court may grant an order that the patrimonial benefits of the marriage are, either wholly or in part, forfeited by one party if after considering the duration of the marriage, the circumstances that lead to the break down of the marriage and any significant misconduct by either party the court is satisfied that the party will unduly benefit if such order is not granted.   

It is clear from various cases that acquiring the right of ownership over each other’s assets is an inevitable consequence of concluding a marriage in community of property, and these orders are not granted to merely balance disproportionate contributions of the spouse to the joint estate. Furthermore, that adultery can substantiate that a marriage has irretrievably broken down but may not be considered as significant misconduct for a forfeiture order unless the conduct is so gross and obvious that it would be simply unacceptable to let the guilty spouse benefit from the marriage. 

Conclusion 
It is evident that concluding a marriage in community of property is a choice that many South Africans have furthermore that the courts take granting forfeiture orders very seriously. It is, therefore, crucial to know the current legislation, the various matrimonial property regimes and the implications it may have on your rights of ownership. Therefore, consult with a legal professional before embarking on your journey to your happily ever after.  

Submitted by SchoemanLaw Inc