Mary married the love of her life, Paul, with the hopes of fulfilling her lifelong dream of starting a family. They had 2 children and everything fell into place until the 10th year of marriage when Mary discovered that Paul has been having extra-marital affairs. She tried to confront him in hopes of him realising his wrongdoings and vowing to be a better husband, however, the opposite occurred and he became physically abusive towards her. Mary desperately wants to divorce Paul, but she is worried about what would happen to her and their children. Mary knows that they are married out of community of property without the accrual system, she has been a housewife for the entire period of their marriage and is worried about her financial future.

Will Mary be able to have a claim against Paul’s estate?

Nothing is black and white during the process of a divorce and therefore the possibility of a divorce order including the forfeiture of patrimonial benefits is always an option to be considered.

When facing a divorce where the relationship between you and your partner has broken down to a point of no return it is important to state your facts and have your side heard, given the fact that the court can, after considering all the relevant facts, make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either as a whole or in part.[1]

When assessing the possibility of granting an order in forfeiture of patrimonial benefits the court must take into consideration one of the following three factors:[2]

  1. The duration of the marriage;
  2. The circumstances which gave rise to the breakdown thereof;
  3. and any substantial misconduct on the part of either of the parties.

Keep in mind that the court’s approach to the contemplation of the aforementioned factors is on a case-by-case basis. Misconduct of one spouse appears to prevail as the factor that possibly carries the most weight, keeping in mind that the misconduct of one spouse should be in relation to the breakdown of the marriage.

The court should come to a conclusion that should the court not grant the forfeiture, one party will be ‘unduly benefitted’ in relation to the other party.

In summary, the decision of granting the forfeiture of patrimonial benefits is up to the court’s discretion and thus it is of utmost importance to ensure that your side of the story is properly portrayed and the facts thereof conveyed to the court ensuring that you obtain a level of protection, should you find yourself being possibly left vulnerable as a result of the irretrievable breakdown.




[1] Section 9(1) of the Divorce Act, 70 of 1979.

[2] Wijker v Wijker 1993 4 SA 720, Botha v Botha 2006 4 SA 144 (SCA).