"An Attorney near me" - Cape Town legal directory
lawyer@capetownlawyer.co.za or WhatsApp

Forfeiture of benefits of marriage in community of property - Wijker v Wijker 1993

If parties are married in community of property, a court can make an order that one party forfeits his or her benefits in the joint estate in favour of the other party. This could be all of the benefits or part thereof. The court looks at various factors in determining whether there should be a forfeiture of the benefits of the marriage in community of property. They look at the length of the marriage as well as the conduct of each party and whether there was substantial misconduct on the part of one of the parties, and the circumstances that gave rise to the breakdown of the marriage.

Wijker v Wijker

One of the leading cases in our law dealing with forfeiture is that of Wijker v Wijker 1993 (4) SA 720. The parties were married in community of property in Holland in 1956. A son was born in 1958 and two daughters, in 1960 and 1965 respectively. On the evidence of the case, prior to 1976, the man was the major breadwinner of the family. In the divorce matter in 1992 the wife claimed a forfeiture order with regards to certain assets.

In coming to their decision the court decided that not all of the factors in Section 9(1) of the Divorce Act need to be alleged and proven for forfeiture to be granted. Section 9(1) of the Divorce Act lists the following factors which the court must take into account when deciding whether the party, against whom forfeiture is sought, would be unduly benefited or not:

- The duration of the marriage;

- The circumstances that gave rise to the breakdown of the marriage;

- Any substantial misconduct on the part of the parties.

The court was of the view that the context and subject matter make it clear that the legislature could never have intended that the factors mentioned in the section should be considered cumulatively.

Wife's business success leads to estrangement

In coming to their decision on Appeal, the court found that on the evidence, a forfeiture order should not have been granted by the trial court. The marriage had lasted for a long time, namely 35 years. The marriage was a happy one until 1983, and the parties became estranged mainly as a result of the fact that the wife became successful in business. The husband found it difficult to cope with this situation and this was probably one of the circumstances that gave rise to the breakdown in the marriage. No substantial misconduct could be proven against the husband.

The court also looked at what exactly a marriage in community of property entails. The court mentioned that the husband being entitled to share in the successful business established by his wife is a consequence of their marriage in community of property. The court found that even if it is assumed that the man made no contribution to the success of the business of his wife and that the benefit which he will receive will be a substantial one, it does not necessarily follow that he will be unduly benefitted.

The court in the Wijker case found that the benefit which would be received cannot be viewed in isolation, but in order to determine whether a party would be unduly benefitted, the court must have regard to the factors mentioned in the section. The court found that the approach adopted by the trial court in concluding that the man would be unduly benefitted should a forfeiture order not be granted was clearly wrong.

This article was written by Cape Town attorney, Peter M Baker