In South Africa, the default position of a marriage is “in community of property,” meaning that spouses share joint ownership of assets acquired during the marriage. However, there are exceptions to this principle, allowing one spouse to claim forfeiture of the other party’s fifty percent claim on the joint estate or a portion thereof during a divorce.
What Is Forfeiture?
To successfully claim forfeiture, the spouse seeking it must demonstrate to the Court that denying forfeiture would unduly benefit the other party. The Court considers several factors, including the duration of the marriage, the circumstances leading to the breakdown of the marriage, and any significant misconduct of either party.
For the Court to grant forfeiture, it must be satisfied that the party against whom forfeiture is sought is guilty of some form of gross misconduct. The definition of gross misconduct can vary, and each case is evaluated individually.
An illustrative case that attracted significant attention involved a couple married in a community of property. The wife, who relocated to Germany for a lucrative job opportunity, claimed forfeiture against her husband. He chose to stay in South Africa and lived in their shared house, which she financially supported, with his only contribution being payment for the electricity bill. When he received his pension fund, he did not share any of the funds with his wife.
The wife based her claim on her husband’s failure to contribute to the household, which would unfairly benefit him if he received half of the joint estate, including her pension fund. Ultimately, the Court ruled in favour of the wife, and the husband’s portion of the joint estate was forfeited due to his lack of contribution to the household.
This judgment sets a precedent for cases where one spouse fails to contribute to the joint estate, allowing individuals to avoid prejudice resulting from the default position of a marriage in community of property.