Chris has a high paying job as a cardiovascular surgeon and Katy manages organic health foods store in a prominent area in the city. Despite Katy’s hard work, Chris has been the main contributor to the families lavish lifestyle and many of their marital assets were purchased in his name. Katy has been suspicious that Chris is engaged in an extramarital affair, which has contributed to their ongoing fighting and change in attitude towards each other over the last while. Katy has considered divorce many times before but stands to lose the financial stability that she has become accustomed to over the past 11 years. Feeling confused and discouraged, Katy decides to confront Chris at his workplace, where she catches him in his office with his secretary. Chris confesses that he is has been involved in an ongoing affair and plans to divorce Katy. Chris and Katy therefore decide to file for divorce based on the irretrievable breakdown of the marriage.
The circumstances above occur far more often than one would hope, whereby one spouse stands to benefit unduly from the breakdown of the marriage at the expense of the other spouse. The “innocent” spouse is protected by section 9 of the Divorce Act in terms of a forfeiture order. A forfeiture order is granted by the court in favour of one spouse who has lost patrimonial benefits as a result of the breakdown of the marriage. The common law interpretation is that the “guilty” party should not be able to gain an advantage from the marriage that they destroyed. Said patrimonial benefits are thus forfeited by the one “guilty” spouse in favour of the other spouse after the consideration of three factors:
- Duration of the marriage
- The circumstances that gave rise to the irretrievable breakdown of the marriage
- Any substantial misconduct that gave rise to the breakdown of the marriage
As simple as these factors may seem, the fault is not easily placed on one party, it is usually a combination of errors from both parties. The court used to amount the breakdown to one guilty party but did away with that rule in Beaumont v Beaumont by stating that both parties are often to blame. With both parties being responsible for the irretrievable breakdown of the marriage it is difficult to attribute misconduct to one party in order to grant favour to the other, therefore the court requires evidence of substantial misconduct going beyond the norm. Examples of substantial misconduct are assault (JW v SW), adultery, desertion, financial misconduct and physical or emotional abuse. The court has the discretion to ascertain whether the misconduct is substantial enough to grant the forfeiture order.
The spouse applying for the forfeiture order will need to provide the necessary proof to support the claim that the other spouse has been unduly benefitted. The applicant spouse must keep in mind that the court will only grant a forfeiture order if the conduct of the guilty party is so gross and obvious that it would be unjust to let said spouse get away with the marriage spoils. (V v V, 2020)
Contact us to learn more about forfeiture orders or establish whether you could be eligible to apply for forfeiture orders.