Forfeiture of patrimonial benefits of the accrual system

In the recent case of M v M (GP) (unreported case no 56859/2021; 26859/2021, 21-2-2023), the Gauteng Division of the High Court in Pretoria looked at the whether the defendant should forfeit the benefits arising from the application of accrual system to the marriage.

In November 2021, the plaintiff (wife) issued summons in which she sought a decree of divorce. However, due to delays on the part of the defendant (husband), the matter was dealt with only in 2023. The hearing was in January 2023 and delivered in February 2023.

The parties were married to one another in April 2011. The accrual system was made applicable to their marriage by virtue of an antenuptial contract in which their respective estates were valued at nil rand. The court pointed out that both parties’ immovable properties were excluded from the accrual, as was both parties’ retirement annuities, pension and provident schemes were also excluded.

The court stated that the plaintiff was evidently a successful businesswoman. She has been operating a close corporation (the corporation) since 2008, to which she is a sole member of the corporation and is her most valuable asset. The court said the defendant held some positions but has also worked for the corporation for a brief period from 2019 to December 2021, when he was dismissed after a disciplinary hearing.

It was common cause that in 2011 to 2015 the defendant was employed in Ermelo. The parties had the understanding that the defendant would return to their Johannesburg home on weekends. However, it was added that those weekends became less frequent as time went on. The defendant on times that he did not go home spent time with his biker friends, leaving the entire burden of maintaining the household financially to the plaintiff.

During a period in 2013 to 2014 the defendant was involved in an extramarital relationship with a family friend, who was also married, while involved with two other women. And from 2016 to 2017, a fourth person, who was a family friend, engaged to be married to another family friend. The court discussed the fact that the defendant had no interest in the corporation and refused to assist the plaintiff financially, until he lost his employment in 2019. The defendant received a settlement payment of R 275 000 from his previous employer but refused to divulge to the plaintiff what he had done with the money. The court set out that the money did not go towards maintenance of the home.

The court pointed out that the defendant was unemployed, and the plaintiff appointed the defendant as Chief Operating Officer of the corporation at a salary of R 35 000 per month. However, the defendant was not satisfied with the salary, and demanded an increase. The defendant salary was increased to R 44 100 and then to R 90 000 per month, simply to ease his demands, and even with that salary none of his income was used to support his family but spend on girlfriends and weekend getaways and towards maintaining a girlfriend in an apartment in Durban.

In February 2021, the defendant reported to the plaintiff that one of the corporation’s vehicles had been stolen in Durban while visiting a supplier. The vehicle was allegedly ‘recovered’ by persons only known to the defendant, and the plaintiff had to pay money to those persons for recovery of the vehicle. The court pointed out that essentially the defendant extorted money from the plaintiff in exchange for the return of her vehicle. The court added that the defendant not being satisfied with merely being unfaithful and dishonest, he also set up his own company to compete with the corporation, while he was still in the corporation’s employee. As a result, he was dismissed in December, which outcome the defendant is still disputing in litigation.

The court pointed out that s 9(1) of the Divorce Act 70 of 1979 reads:

‘(1) When a decree of divorce is granted on the ground of the irretrievable breakdown of a marriage the court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part, if the court, having regard to the duration of the marriage, the circumstances which gave rise to the breakdown thereof and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefitted.’

The court referred to Wijker v Wijker 1993 (4) SA 720 (A) where the court had to consider the correct approach to forfeiture orders. The court in Wijker said:

‘It is obvious from the wording of the section that the first step is to determine whether the party against whom the order is sought will in fact benefit. Once that has been established the trial court must determine whether that party will in relation to the other be unduly benefited if a forfeiture order is not made. Although the second determination is a value judgment, it is made by the trial court after having considered the facts falling within the compass of the three factors mentioned in the section.’

The court said that once it has been determined that a party will benefit if an order is not made, the next question is thus how the three factors of duration, substantial misconduct, and the case breakdown are to be weighed. The court added that when the determination is made that the defendant would benefit by sharing in plaintiffs’ estate, the three factors must be considered individually to determine whether the benefit that would accrue to the defendant would be ‘undue’. The court pointed out that the Divorce Act intended to move away from the fault-factor in divorces, but rather to provide for a fair determination of the parties’ patrimonial affairs.

The court said, the requirement that the benefit must be ‘undue’ requires one to exercise a value judgment. It was added that although there is no evidence of the value of defendant’s estate, and what its accrual may be, there is no doubt that the plaintiff’s estate has shown growth. The court added that it was aware of the fact that the marriage (on the face of it) lasted some 12 years. However, in truth, the marriage relationship lasted for but a short while. The court said the defendant was soon living as if he were a bachelor. He only came home for brief intermittent periods and did not contribute to the common home financially, emotionally, or in any other manner.

It was held that it would be exceedingly unfair that the defendant, having shown no regard for his role as husband and father, and having made no contribution of any kind to the common home, neither financially nor emotionally, should benefit from the plaintiff’s work. The court added that it was of the view that the claim for forfeiture should succeed. The plaintiff provided the court with a draft order, which the court incorporated in the judgment.

The court, after considering the matter, granted the plaintiff a decree of divorce. The defendant forfeited the patrimonial benefits of the accrual system in total, including the plaintiff’s members’ interest in the corporation. Both parties were to retain full parental rights and responsibilities in respect of their minor child born in January 2015 including the parental responsibilities and rights.

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