Understanding Section 7 of the Divorce Act and Forfeiture of Benefits Claims in South Africa
Divorce can be a complex and emotionally charged process. Among the many considerations that arise, financial implications often play a central role. One key legal provision that governs these financial matters in South Africa is Section 7 of the Divorce Act 70 of 1979. This section lays out the framework for determining how assets are divided upon divorce. An important aspect of this is the potential for a spouse to claim forfeiture of benefits.
In this post, we will unpack how Section 7 of the Divorce Act operates and explain what a forfeiture claim entails.
Section 7 of the Divorce Act: An Overview
Section 7 of the Divorce Act deals with the division of assets between spouses. The default position in South African law depends on the marital regime under which the parties were married:
In community of property: The spouses share equally in all assets and liabilities.
Out of community of property with accrual: Each spouse retains their own property, but they share in the growth of the joint estate over the course of the marriage.
Out of community of property without accrual: Each spouse keeps their own property and is not entitled to any share of the other spouse's assets.
Section 7 also makes provision for settlement agreements between the spouses and empowers the courts to intervene where necessary. However, where one spouse stands to benefit unfairly from the assets of the other, a forfeiture of benefits claim can be brought under Section 9 of the Divorce Act.
What is Forfeiture of Benefits?
A claim for forfeiture of benefits is essentially an argument that it would be unjust for one spouse to benefit from assets or contributions made by the other during the course of the marriage. The main aim is to prevent a party from unduly benefiting from the marriage where they did not contribute equally or acted in a way that does not warrant such a benefit.
Forfeiture typically applies to marriages in community of property or with accrual, where one spouse stands to receive part of the other’s estate. It is important to note that forfeiture does not affect property that belongs to the parties individually.
When Can Forfeiture of Benefits Be Claimed?
Forfeiture can be claimed under Section 9 when it appears that one party would, without justification, benefit disproportionately from the divorce. The court will consider three factors when deciding whether to grant a forfeiture order:
The duration of the marriage: A short marriage may be more likely to result in a forfeiture order, particularly where one party would otherwise gain a large share of the assets accumulated over a brief period.
The circumstances that led to the breakdown of the marriage: If one party is responsible for the breakdown due to misconduct, the court may consider it unjust for that party to benefit from the marriage.
Any substantial misconduct by either party: Acts of adultery, abuse, or financial irresponsibility may persuade the court to order forfeiture.
What Does Forfeiture Entail?
Forfeiture can apply to specific benefits or to the entire estate. It typically involves one party being denied a share of the communal property or accrual. This can include:
Property: The family home or other assets that would otherwise be divided.
Pensions: If the parties are married with accrual, forfeiture may prevent a spouse from benefiting from the other’s pension fund.
Other financial benefits: Any benefit the spouse stands to gain from the dissolution of the marriage.
Key Case Law on Forfeiture of Benefits
Over the years, South African courts have clarified how forfeiture of benefits should be applied. One important case is Wijker v Wijker , where the court held that it is not necessary to prove substantial misconduct when claiming forfeiture. Instead, the court needs only to determine that the party stands to benefit unfairly if forfeiture is not granted.
In Klerck v Klerck, the court emphasised that the division of assets should be fair and just. The spouse who contributed more to the marriage, whether financially or otherwise, should not be disadvantaged by the divorce.
Conclusion
Forfeiture of benefits is a crucial tool in ensuring fairness during a divorce, particularly where one spouse may unfairly benefit from the marriage. Section 7 of the Divorce Act provides a robust framework for dividing assets, but it is Section 9 that ensures a just outcome when forfeiture is necessary.
If you are facing a divorce and are uncertain about how your assets may be divided, or if you believe you have a valid claim for forfeiture, it is essential to consult a family law attorney who can guide you through the legal process. Understanding your rights can ensure that you are protected and receive a fair settlement.
For professional advice on forfeiture claims and other divorce-related matters, contact our firm today.
