Forfeiture of patrimonial benefits Flashcards
(18 cards)
Which section regulates the forfeiture of patrimonial benefits?
Section 9 of the Divorce Act 70 of 1979
What was the case back then in terms of common law when it comes to the forfeiture of patrimonial benefits?
The rule was that no one should be allowed to benefit financially from the a marriage which he/she had caused to fail.
How was this common law principle changed?
By S9. Now misconduct serves only as a factor to be considered.
How does section 9 remedy the unfairness?
The unfairness of having to share things equally when one of the spouse is the reason the marriage dissolved.
Who can apply to the forfeiture of the benefits?
Either the plaintiff or the defendant to the divorce action.
Is the forfeiture an automatic rule?
No, The court has the discretion to grant such an order.
In which ground of marriage can the order for the forfeiture be granted?
Irretrievable breakdown
When might a forfeiture order be considered?
When one spouse would benefit unfairly (be unduly enriched) if the order is not made.
What is meant by “unduly benefited”?
It means one spouse gets more than they fairly should, especially if the benefit comes from the other spouse’s efforts during the marriage.
What is the main criterion the court applies before making a forfeiture order?
Will the party against whom the order is sought be unduly benefited if the order is NOT made?”
What does a forfeiture order include?
giving up” money or property that a spouse “has become entitled to because of the marriage”.
What FACTORS to be considered to determine whether the criterion has been met? in terms of S9 (1)
i) DURATION of the marriage;
ii) the CIRCUMSTANCES giving rise to the breakdown;
iii) any SUBSTANTIAL MISCONDUCT on the part of EITHER of the parties.
What WEIGHT should be accorded to these factors?
1). Matiyla v Matiyla: ALL THREE must be present and proved.
2. In Wijker v Wijker the SCA held that these factors are not cumulative – it is thus not necessary to prove that all three are present. This is the current legal position.
What was decided in the case of Botha v Botha?
That only the three factors mentioned in S9 should be taken into account not any other factors.
Which benefits can be forfeited in marriages in COP?
A spouse’s share in ASSETS:
-brought into the marriage by the other spouse; or
-acquired via the OTHER spouse (e.g. an inheritance).
Which benefits can be forfeited in marriages out of COP?
the right to share in the ACCRUAL of the other spouse;
DONATIONS or benefits in terms of a SUCCESSION CLAUSE in an antenuptial contract.
What is the fundamental difference between the distribution of assets and accrual claim?
The court has the discretion to include the trust fund asset in the distribution of assets and it has no discretion to do so in terms of accrual claim.
What was decided in the case of REM v VM?
That the assets of a trust may be considered when calculating the accrual if the claimant can prove that the other spouse:
1. Transferred their personal assets to the trust fund and continued to deal with them as if they were assets of the trust, with the fraudulent or dishonest intention of avoiding their obligation to pay the spouse what they rightfully deserve by hiding wealth.”
