Forfeiture ruling overturned on appeal
The Eastern Cape High Court (Mthatha) has ordered that the decision of a Regional Court magistrate ordering the husband to forfeit the benefits arising out of a marriage in community of property be set aside and substituted with an order for the division of the joint estate.
A Daily Dispatch report notes the parties were married in community of property in 1991 and in 2022, the wife was served with divorce papers.
The parties divorced and the decree of divorce was granted by the Regional Court magistrate in February 2023.
In his order, the regional magistrate granted a forfeiture order in favour of the wife in respect of the marital home and her pension interest.
The husband appealed the decision.
It was argued on behalf of the husband that the regional magistrate misdirected himself when granting an order for forfeiture.
It was further argued that the wife requested forfeiture with the full knowledge that during the subsistence of the marriage, the couple had ‘been enjoying the pensions/provident funds of the appellant as he would usually lose jobs – now and again.’
The High Court highlighted that where forfeiture of benefits is sought, the onus is on the party seeking forfeiture to demonstrate that the other party will unduly benefit if forfeiture is not ordered.
The Daily Dispatch report says it found that the husband contributed to the joint estate and the welfare of the children.
Further, the High Court mentioned that the regional magistrate identified the fact that the husband had children out of wedlock and the effect that his actions had on the wife’s health, as factors that put a strain on the marriage.
Those, according to the appeal court, are the factors that led to the breakdown of the marriage and do not constitute sufficient basis to warrant forfeiture of benefits.
The High Court was therefore not satisfied that the husband committed a substantial misconduct.
It found that he materially contributed to the education of his children, took steps to save his marriage by making means to ‘bring back his wife to their marital home’.
As a result, the court ordered that the decision of the Regional Court magistrate ordering forfeiture of benefits be set aside and substituted with an order granting a division of the joint estate.
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.
