“So often, a party in a divorce is so aggrieved and upset by their spouse’s behaviour during the marriage, and rightfully so, that they cannot fathom having to give up an asset or let their spouse benefit in any way, upon divorce. We have had numerous spouses wanting us to apply forfeiture of the benefits of the marriage based on the other spouse’s bad behaviour during the marriage.” (Extract from one of the High Court judgments below)
Divorce all too often involves high levels of stress, antagonism, dispute and desire for revenge. So, when it comes to splitting up the marital assets, the thoughts of one (or both) of them may well turn to something like “It’s their fault, I want more than just my share, in fact I want everything”.
Which is where the concept of “forfeiture of benefits” (sometimes referred to as “forfeiture of assets”) comes in. It’s an old concept in our law and is increasingly being applied for in our courts, as evidenced in several recent cases which have received wide media coverage. But what exactly does a forfeiture order entail?
The court in granting a divorce has a discretion, in appropriate cases, to order that one party forfeits either all the assets of the marriage, or a specific asset or assets. This overrides both the effect of the “marital regime” of the marriage (in community of property, out of community of property with accrual, out of community of property without accrual) and anything agreed to by the parties in their ANC (ante-nuptial contract).
Forfeiture orders are the exception not the rule, and the onus is firmly on the party claiming forfeiture to establish the basis and amount of their entitlement to it.
The Divorce Act provides that, where a divorce is granted on the grounds of irretrievable breakdown of the marriage, the court may order forfeiture if it is satisfied that one party will otherwise be “unduly benefitted” in relation to the other (the party claiming forfeiture will have to establish the “nature and extent” of that undue benefit). The court will take into account –
That gives the court a wide discretion, and every case will be different, but let’s have a look at three recent High Court decisions to illustrate some typical scenarios in which forfeiture was successfully applied for –
The Court’s decision followed its findings that the husband was guilty of “shockingly egregious” misconduct during most of the marriage, including living away from home, failing to “contribute to the common home financially, emotionally, or in any other manner”, engaging in a long string of extra-marital affairs and attempting, whilst employed in his wife’s successful business, firstly to fraudulently extort money from it and secondly to hijack the business.
Relevant factors considered by the Court – the short duration of the marriage (14 months from marriage to separation), the 39-year age gap between them, her lack of love or respect for him and embarrassment at being seen in public with him, and her desire to live an extravagant lifestyle beyond his means.
We are experienced lawyers and advise on all aspects of law relating to the family. Contact our Family Law professionals for assistance on 021 683-3553 or 021 914-4020.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
© LawDotNews
Cookie | Duration | Description |
---|---|---|
cookielawinfo-checkbox-analytics | 11 months | This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Analytics". |
cookielawinfo-checkbox-functional | 11 months | The cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional". |
cookielawinfo-checkbox-necessary | 11 months | This cookie is set by GDPR Cookie Consent plugin. The cookies is used to store the user consent for the cookies in the category "Necessary". |
cookielawinfo-checkbox-others | 11 months | This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Other. |
cookielawinfo-checkbox-performance | 11 months | This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Performance". |
viewed_cookie_policy | 11 months | The cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. It does not store any personal data. |