One critical aspect in divorce that often comes into play is the concept of forfeiture of benefits. This legal principle involves the division of property upon divorce.
Aten when consulting with client’s I hear that it is not fair that my spouse should be entitled to my property or it is my spouses fault we are getting a divorce I do not want to share my assets with him or her. 

In this blog, we’ll explore what forfeiture of benefits means, how it applies in divorce proceedings, and what you should consider if you find yourself navigating this challenging terrain. Whether you’re contemplating divorce or currently in the thick of it, understanding this concept can help you make informed decisions and protect your financial future.

What is Forfeiture of Benefits?

Forfeiture of benefits in divorce refers to the loss of certain financial benefits or entitlements that a spouse might otherwise receive as a result of the marriage in community of property and even extends to marriages out of community of property in respective of the accrual sharing, typically due to specific actions or circumstances during the marriage relationship. Such actions can include misconduct during the marriage. 

The court in granting a divorce has a discretion, in appropriate cases, to order that one party forfeits either all the assets of the marriage or a specific asset. This overrides both the effect of the “marital regime” of the marriage. 

When Would You Be Entitled To A Forfeiture Order?

The Divorce Act provides that, where a divorce is granted, the court may order forfeiture if it is satisfied that one party will otherwise be “unduly benefitted” in relation to the other (the party claiming forfeiture will have to establish the “nature and extent” of that undue benefit).

The court will take into account the following factors –

1.The duration of the marriage,
2.The circumstances that caused the marital breakdown, and
3. Any substantial misconduct on the part of either of the parties. 

That gives the court a wide discretion, and every case will be different, but let’s have a look at three recent High Court decisions to illustrate some typical scenarios in which forfeiture was successfully applied for –

Example 1 – 

A couple were married out of community of property with accrual. On divorce, that would normally result in a balancing between the parties of the asset accrual during the marriage, but in this case, in granting the wife a divorce from her husband after 12 years, the High Court ordered that the husband “forfeits the patrimonial benefits of the accrual system in total”, including his interest in the wife’s business.
The Court’s decision followed its findings that the husband was guilty of “shockingly egregious” misconduct during most of the marriage, including living away from home, failing to “contribute to the common home financially, emotionally, or in any other manner”, engaging in a long string of extra-marital affairs and attempting, whilst employed in his wife’s successful business, firstly to fraudulently extort money from it and secondly to hijack the business.

Example 2 – 

A short marriage ends.

Here, the High Court ordered that a wife forfeit her share of the joint estate assets (with “in community of property” marriages a joint estate is formed, which in the normal  course would be divided 50/50 on divorce) after accepting the husband’s evidence that she had “married him to secure financial wealth for herself, advance herself in [the] political arena by using his influence and to benefit from his estate.”
Relevant factors considered by the Court – the short duration of the marriage (14 months from marriage to separation), the 39-year age gap between them, her lack of love or respect for him and embarrassment at being seen in public with him, and her desire to live an extravagant lifestyle beyond his means.

Example 3 –

In this matter the Court ordered the husband to forfeit his share of another “in community of property” joint estate, including an immovable property and a share in his wife’s pension interest. The husband’s conduct, held the Court, had been tantamount to “substantial misconduct”, including failure to contribute to household expenses, failure to pay his child’s maintenance until forced to do so by the Maintenance Court, extra-marital affairs and physical, financial and emotional abuse.

Should you require the assistance in claiming forfeiture of benefits during a divorce. Please feel free to reach out to us for expert advise and assistance in divorce matters – call to book an appointment