Divorce is regarded by most who have been divorced themselves, or witnessed a loved one going through a divorce, as one of the most difficult and taxing experiences.
Even more so when one party to the marriage has been deceitful and the innocent partner is compelled to share the estate with an unfaithful spouse.
The question then arises as to how an innocent party could prevent the share of their estate with an unfaithful spouse.
- Let’s look at how we go about it:
The main reason for the granting of a divorce is the ‘irretrievable breakdown’ of the marriage. In simpler words, this means there must be no chance that the marriage might be saved.
When instituting divorce proceedings for this reason, an innocent spouse may request the court to grant a ‘forfeiture of patrimonial benefits’ at the expense of the unfaithful spouse.
This sounds like a mouthful, but essentially a court has the power to order that a party to the marriage lose their benefits should certain requirements be met.
The requirements/factors the courts look at are :
1. the period of time that parties have been married for;
2. whether there has been any substantial misconduct by either party;
3. the alleged circumstances that led to the parties’ decision to get divorced.
Assuming these requirements/factors are met/present, a court should be satisfied that the unfaithful party would be unduly benefited before it will grant the forfeiture order.
Unfortunately, these factors are considered on a case-by-case basis as there is no definition in the Divorce Act.
In the case of Singh v Singh, the court ordered a forfeiture of benefits against the wife even though the parties were married for over 20 years.
In other cases, the court has taken the stance that ‘it takes two to tango’, and has been reluctant to grant the forfeiture order. In the case of Beaumont v Beaumont, the judge stated: “In many, probably the most cases, both parties will be to blame, in the sense of having contributed to the breakdown of the marriage.
“In such cases, where there is no conspicuous disparity between the conduct of the one party and that of the other, our courts will not indulge in an exercise to apportion the fault of the parties, and thus nullify the advantage of the no-fault system of divorce.”
Due to the variance of the courts we would suggest that, should this scenario be applicable to you, you approach an experienced divorce attorney (not all attorneys are divorce attorneys).
Should you require any assistance from our divorce department, or any other department, you are welcome to contact us on 011 897 1900 or info@tuckers.co.za
Article contributed by Kenny Smith and Stacey Bonser of Tuckers Inc.
