AV v MV

• Jurisdiction: South Africa
• Judge: Maumela J
• Judgment Date: 04 March 2020
• Docket Number: 3389/2017
• Court: North Gauteng High Court, Pretoria
• Hearing Date: 04 March 2020
• Citation: 2020 JDR 1009 (GP)

Maumela J:

1.

This is a divorce which is opposed. The Plaintiff is an adult male business man, residing at xx, Pretoria, Gauteng. The Defendant is an adult female, employed as a Human Resources Planner by the Department of International Relations and Co-operation at 406 Soutpansberg Road, Pretoria, Gauteng and residing at 633

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Rudolf Street, Constantia Park, Pretoria, Gauteng.

2.

The Plaintiff requests division of the joint estate whilst the Defendant requests an order for the forfeiture of the patrimonial benefits of the marriage in community of property that she and the Plaintiff contracted into. [1] It is common cause that the parties got married in community of property and of profit and loss and that their marriage still subsists. There is also no dispute about that fact that the marriage relationship between the two has broken down irretrievably.

3.

Both parties level blame; the one against the other for the irretrievable brake down of their marriage relationship. The Defendant launched a counterclaim against the plaintiff in which she seeks an order of forfeiture of the marital benefits against the Plaintiff in terms of Section 9(1) of the Divorce Act [2] . The Plaintiff opposes the counter-application for forfeiture.

4

There is no dispute between the parties about the fact that they are married to one another in community of property and of profit and loss. H.R. Hahlo [3] describes community of property as follows: "Community of property is a universal economic partnership of the spouses. All their assets-and liabilities are merged in a joint estate, in which both spouses, irrespective of the value of their financial contributions, hold equal shares." [4]

5.

Our law expresses clearly on the aspect of the consequences of contracting into a marriage in community of property and of profit and loss. There is also legal certainty about positive steps spouses ought to take who contract into marriages in the event where they do not wish to subject themselves to a marital regime which entails community of property and of profit and loss. It is trite that in South Africa, community of property and of profit and loss is the applicable marital regime

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unless the couple contracting into marriage expressly exclude it by way of entering into an ante nuptial contract.

6.

It is common cause that in this case, the parties did not contract into any ante-nuptial contract. It is for that reason that when the Plaintiff in this case sued for divorce, the Defendant launched a counter-application, seeking an order for the Plaintiff to forfeit his patrimonial benefits of the marriage between him and the Defendant, in community of property.

7.

Patrimonial benefits of the marriage in community of property between the parties are declared to have been forfeited by the Plaintiff in favour of the Defendant and more particularly the benefits with regard to the Defendant's house situated at 633 Rudolf Street, Constantia Park, Pretoria, Gauteng, as well as the Defendant's Government Service Pension Fund.

8.

In the case of Engelbrecht v Engelbrecht [5] , the headnote reads as follows: "Joint ownership of another party's property is a right which each of the spouses acquires on concluding a marriage in community of property. Unless the parties, (either before or during the marriage), make precisely equal contributions the one that contributed less shall on dissolution of the marriage be benefited above the other if forfeiture is not ordered. This is the inevitable consequence of the parties' matrimonial property regime."

9

Section 9 (1) of the Divorce Act [6] provides as follows:

"Forfeiture of patrimonial benefits of marriage.

(1)

When a decree of divorce is granted on the ground of the irretrievable break-down of a 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

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one party will in relation to the other be unduly benefited."

10.

The court may order forfeiture only if it is satisfied that the one party will, in relation to the other, be unduly benefited. [7] A party claiming forfeiture must "plead the necessary facts to support that claim and formulate a proper prayer in the pleadings to define the nature of the relief sought". [8] Thus the onus is on the applicant for a forfeiture order to prove the nature and the ambit of the benefit to be forfeited, and in so doing the applicant must prove the extent to which it is an undue benefit. [9]

11.

Similarly, the allegation of undue benefit must be pleaded and proven. Our law has held that it would not be enough simply to refer to the acquisition of an asset and then make the bald allegation that the party against whom forfeiture is claimed will be unduly enriched at the expense of the other if forfeiture is not granted [10] In exercising the discretion to order forfeiture, the court is enjoined to ask itself whether one party would be unduly benefited were such an order not made. [11]

12

The court may order forfeiture only if it is satisfied that the one party will, in relation to the other, be unduly benefited. [12] A party claiming forfeiture must "plead the necessary facts to support that claim and formulate a proper prayer in the pleadings to define the nature of the relief sought". [13] Thus the onus is on

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the applicant for a forfeiture order to prove the nature and the ambit of the benefit to be forfeited, and in so doing, the applicant must prove the extent to which it is an undue benefit. [14] Similarly, the allegation of undue benefit must be pleaded and proven. It would not be enough simply to refer to the acquisition of an asset and then make the bald allegation that the party against whom forfeiture is claimed will be unduly enriched at the expense of the other if forfeiture is not granted. [15]

13.

In exercising the discretion to order forfeiture, the court is enjoined to ask itself whether one party would be unduly benefited were such an order not made. [16] In answering this question, the court should consider factors such as the following:

(i). the duration of the marriage or civil union;

(ii). the circumstances that gave rise to the break-down of the marriage or civil union; and

(iii). any substantial misconduct on the part of either of the parties and the fact that an undue benefit may accrue to the one party in relation to the other if an order of forfeiture is not granted.

14.

The court has a wide discretion in that it may order forfeiture in respect of the whole or part only of the benefits. [17] The discretion is restricted to a consideration of these grounds alone. No other factors may be taken into account. [18] The Appellate Division in the case of Wijker [19] pointed out that the

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so-called "principle of fairness" was not one of the criteria mentioned in s 9(1), and therefore could not be considered in deciding whether to grant a decree of forfeiture.

15.

The finding of substantial misconduct on the part of the defendant is not a sine qua non for the granting of a forfeiture order. [20] Indeed, care must be taken not to elevate misconduct to a consideration higher than the basic requirement of undue benefit. Substantial misconduct may include conduct that has nothing at all to do with the breakdown of the marriage and may for that reason have been included as a separate factor. But, as the Appellate Division in Wijker [21] cautioned; misconduct which is not of a serious nature should be accorded too much importance.

16.

While the duration of the marriage and the reasons for the breakdown may be clearly inferred from the plaintiff's summons or plaintiff-in-reconvention's counterclaim, the evidence concerning "substantial misconduct" cannot be simply inferred from the facts alleged. Thus, for example, adultery may...