Adultery and the Forfeiture of Assets in a Divorce

Recently, in a case in the High Court in Pretoria, the question of whether a spouse guilty of “substantial misconduct” such as adultery should be punished has come under the spotlight.

One of the most significant policy questions involving the division of marital property is whether the division should be influenced by marital misconduct. At present, a majority of jurisdictions hold that marital misconduct is a factor to be considered 

The recent case of an Mpumalanga couple, who divorced after 26 years of marriage because the woman had affairs, sparked a closer look at whether the Divorce Act is outdated.

A magistrate ruled that the woman forfeited some of the financial benefits she and her husband acquired during their marriage, as she had cheated on him on several occasions.

The parties in this case were married out of community of property with an antenuptial contract that included the accrual system. The magistrate found in favour of the husband and granted an order of partial forfeiture of marital benefits against the wife. He also ordered her to pay the costs. The woman then lodged an appeal to the High Court to appeal the magistrate’s order.

Section 9(1) of the Divorce Act 70 of 1979 states:

“(1) When a decree of divorce is granted on the ground of the irretrievable break-down of marriage the court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part, if the court, having regard to the duration of the marriage, the circumstances which gave rise to the break-down thereof and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefited.”

According to the Judge in the High Court, the magistrate, correctly found that the woman was guilty of misconduct. However, the Judge said, this was not the sole cause of the break-up of the marriage and he found that the husband had “reluctantly” agreed that he rejected his wife’s efforts to reconcile. The Judge was also of the view that it was seldom that a marriage would break down solely due to the conduct of one party.

The Judge referred to the evidence by the husband, in which he admitted his wife was a diligent, wife and a good mother who resigned from her work to devote all her time to their children and the family. This, according to the man, allowed the family to prosper. The judge said that, although her contribution towards the growth of her husband’s estate was not quantified, it could be inferred that she used most, if not all, of her earnings while she was employed, towards the maintenance of the household.

The magistrate’s erred in his finding that the woman would unfairly benefit from their marital estate if he did not order a portion of it forfeited due to her misconduct. It is trite law that a party can only benefit from an asset brought into the estate by the other party, and not from his or her own asset. The wife in this case could thus not forfeit the assets which came about as a result of her contributions. The Judge was further stated that the magistrate, in awarding a cost order against the wife, wanted to punish her for her misconduct. He said the logic behind section 9(1) was that a spouse should not benefit financially from a marriage he or she had wrecked.

Although the Divorce Act 70 of 1979 did away with the “fault” principle a few years ago as a ground for divorce, the Act still allowed for the forfeiture of financial benefits if a spouse committed adultery. It appeared fault still played a role in our divorce system. The judge questioned whether “misconduct” was still relevant.

In light of the recent decision of the Constitutional Court in the case of DE v RH 182/14 it follows that Section 9 of the Divorce Act is archaic and outdated as it was aimed at punishing a party. The court ruled the Justice Minister and Speaker of Parliament be added as parties and that interested parties may enter the fray as friends of the court.

In the past our courts relied on the guilt principle in order to reach their decisions. South Africa’s courts have been called upon to pronounce on section 9(1), however, they have been unpredictable regarding the weight to be attached to each of the factors listed in section 9(1) when granting an order of forfeiture of patrimonial benefits. In 1992 that the Appellate Division in the case of Wijker clarified the position and stated that all three factors do not have to be present and they need not be considered cumulatively. South African courts generally, have failed to properly interpret section 9(1) and neglected to provide proper guidance on what the phrase “unduly benefited” means within the context of the Act.

As stated above courts have to consider three factors before granting a forfeiture order:

·         The duration of the marriage;

·         the circumstances which gave rise to the breakdown thereof;

·         and any substantial misconduct on the part of either of the parties.

It is clear from previous decisions by our courts that when the marriage is regarded by a court as of short duration, the court will order forfeiture if it is established that if the order is not made one party will be unduly benefited. In the case of Swanepoel v Swanepoel, the court held that a marriage which was concluded on 15 December 1990, where one of the parties left the common home on 4 June 1995, was of a short duration and in Malatji v Malatji, the parties married on 14 February 2002 and the defendant left the common home during June 2003, the marriage was held to be of short duration.

The Act does not say what circumstances may be considered by our courts in judging what led to the breakdown of the marriage. Cases are also not clear on this point and such an analysis have to be made on a case-to-case basis. Misconduct such as itself is not a factor which can bring about a forfeiture order, such misconduct must be substantial and the concept of substantial misconduct is not defined in the Act. Our courts have also not been helpful in this regard.

In the case of Beaumont v Beaumont it was stated “...ln many, probably the most cases, both parties will be to blame, in the sense of having contributed to the break-down 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.”

The legislature has not gone far enough to address the deficiencies and injustices inherent in the guilt principle and therefore  the court’s decision was correct that the Justice Minister and Speaker of Parliament be added as parties and that interested parties may enter the fray as friends of the court to.

 The fault principle is generally stated as a guideline in the Act. It must be removed from the statute book in clear and unambiguous terms. In my submission, its retention only serves to plague divorce law with confusion and uncertainty.

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