One critical aspect in divorce that often comes into play is the concept of forfeiture of benefits. This legal principle involves the division of property upon divorce.
Aten when consulting with client's I hear that it is not fair that my spouse should be entitled to my property or it is my spouses fault we are getting a divorce I do not want to share my assets with him or her. 

In this blog, we’ll explore what forfeiture of benefits means, how it applies in divorce proceedings, and what you should consider if you find yourself navigating this challenging terrain. Whether you're contemplating divorce or currently in the thick of it, understanding this concept can help you make informed decisions and protect your financial future.

What is Forfeiture of Benefits?

Forfeiture of benefits in divorce refers to the loss of certain financial benefits or entitlements that a spouse might otherwise receive as a result of the marriage in community of property and even extends to marriages out of community of property in respective of the accrual sharing, typically due to specific actions or circumstances during the marriage relationship. Such actions can include misconduct during the marriage. 

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. This overrides both the effect of the “marital regime” of the marriage. 

When Would You Be Entitled To A Forfeiture Order?

The Divorce Act provides that, where a divorce is granted, 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 the following factors –

1.The duration of the marriage,
2.The circumstances that caused the marital breakdown, and
3. Any substantial misconduct on the part of either of the parties. 

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 –

Example 1 - 

A couple were married out of community of property with accrual. On divorce, that would normally result in a balancing between the parties of the asset accrual during the marriage, but in this case, in granting the wife a divorce from her husband after 12 years, the High Court ordered that the husband “forfeits the patrimonial benefits of the accrual system in total”, including his interest in the wife’s business.
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.

Example 2 - 

A short marriage ends.

Here, the High Court ordered that a wife forfeit her share of the joint estate assets (with “in community of property” marriages a joint estate is formed, which in the normal  course would be divided 50/50 on divorce) after accepting the husband’s evidence that she had “married him to secure financial wealth for herself, advance herself in [the] political arena by using his influence and to benefit from his estate.”
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.

Example 3 -

In this matter the Court ordered the husband to forfeit his share of another “in community of property” joint estate, including an immovable property and a share in his wife’s pension interest. The husband’s conduct, held the Court, had been tantamount to “substantial misconduct”, including failure to contribute to household expenses, failure to pay his child’s maintenance until forced to do so by the Maintenance Court, extra-marital affairs and physical, financial and emotional abuse.

Should you require the assistance in claiming forfeiture of benefits during a divorce. Please feel free to reach out to us for expert advise and assistance in divorce matters - call to book an appointment  

Divorce is never easy, and when it comes to dividing assets, particularly property, the process can become even more complex. In South Africa, the legal framework governing the sale of property during divorce proceedings is crucial to understand for both parties involved. Whether you're a homeowner or a legal professional guiding clients through this challenging time, this blog aims to shed light on the key considerations and steps involved in selling property during a divorce in South Africa.
Understanding the Legal ContextIn South Africa, the division of property during divorce is primarily governed by the Divorce Act of 1979 and the Matrimonial Property Act of 1984. These laws outline how assets, including property, should be divided between spouses.

1. Matrimonial Property Regimes

The way property is divided largely depends on the matrimonial property regime chosen by the couple. There are three primary regimes:

• In Community of Property: All assets and liabilities are shared equally between spouses. Upon divorce, the assets, including property, are divided equally.
• Out of Community of Property: Each spouse retains ownership of the property and liabilities they brought into the marriage. Property acquired during the marriage is divided according to any agreements or, if none, based on the law.
• Out of Community of Property with the Accrual System: This is a hybrid where each spouse keeps their pre-marriage assets, but assets acquired during the marriage are divided according to the accrual system, which aims to ensure a fair division based on the growth in value of each spouse’s estate.

2. Settlement Agreements

If the couple is considering divorce a deed of settlement allows flexibility to divide the assets according to their own desires and not necessarily in terms of 50/50 split. Settlement agreements are negotiated and can dictate how property should be divided or whether it should be sold. 

3. The Process of Selling Property During Divorce

1. Valuation of the Property- Before any sale can take place, the property must be accurately valued. Engaging a professional appraiser or estate agent to determine the market value is essential. This valuation forms the basis for negotiations and helps in ensuring a fair sale price.
2. Agreement on Sale Terms - Both parties must agree on the terms of the sale, including the asking price, the agent’s commission, and any necessary repairs or improvements to be made before listing the property. This agreement should be documented formally to avoid disputes later.
3. Finding a Real Estate Agent - Choosing a reputable real estate agent is crucial. The agent should be experienced in handling sales in divorce situations, as they can navigate the emotional and logistical complexities involved.
4. Listing and Selling - Once the property is listed, the sale process follows the standard real estate procedures. This includes marketing the property, conducting viewings, and negotiating offers. Both parties should be kept informed throughout the process.
5. Finalizing the Sale - Once a buyer is secured, the sale agreement must be drafted and signed by both parties. It’s advisable to involve legal professionals to ensure that all terms are legally sound and to handle the transfer of property ownership.

4. Legal and Financial Considerations

• Tax Implications: The sale of property can have tax implications, such as capital gains tax. Consulting with a tax advisor can help in understanding and managing these implications.
• Settlement of Debts: Any outstanding mortgage or other debts tied to the property should be settled from the proceeds of the sale before dividing the remaining amount.
• Court Orders: In some cases, especially if parties cannot agree on terms, the court may issue orders regarding the sale of the property. Adhering to these orders is crucial to avoid legal repercussions.

5. Emotional and Practical Challenges

Divorce is emotionally taxing, and selling a shared property can add to the stress. It’s essential for both parties to communicate openly and work towards a fair resolution. Seeking counseling or mediation can help in managing the emotional aspects and facilitate smoother negotiations.
ConclusionSelling property during a divorce in South Africa requires careful consideration of legal, financial, and emotional factors. Understanding the applicable matrimonial property regime, valuing the property correctly, and working through the sale process with transparency are key steps. Both parties should seek legal and financial advice to navigate this complex process effectively. By approaching the sale with a clear plan and open communication, the process can be managed more smoothly, allowing both parties to move forward with their lives.

​Disclaimer: This blog provides a general overview of the topic and should not be considered legal advice. For personalized guidance, consult a qualified legal professional.

What is divorce?

A divorce is a legal separation of a couple. If you have a civil marriage your divorce will be dissolved using the Divorce Act. Marriages in terms of African Customary Law are ended using civil . This means that the marriage will be dissolved using the Divorce Act but certain conditions may apply. 

Who qualifies for a divorce?

You need a reason to get divorced.  In terms of the Divorce Act, a divorce can in the following circumstances:

• There has been an “irretrievable breakdown” of the relationship, which basically means you have worked on the relationship and there is no chance of you resolving or repairing the marriage. 
• The can be due to various reasons is not a closed listed, important to note no consent is required from your spouse to divorce. 
• One partner has been declared a habitual criminal and is undergoing imprisonment as a result of a sentence instructed by a court.
• You can get a divorce if your partner has been in a mental health facility for at least two years and doctors don't think they will ever recover.
• Your partner has been unconscious for at least 6 months and doctors believe they will never recover.

If you meet the criteria above, you can follow these easy steps to ensure the process runs as smoothly as possible:
Step 1: Get legal advice
If you're considering a divorce, get help from a lawyer who specialises in divorce.
There are many rules on divorce. Your marriage agreement may influence your divorce process. For instance, if you're married in community of property, your shared property may be divided equally between you and your partner. It is recommended that you seek legal advise before commencing with a divorce in order to make sure you obtain everything you have a right too and to make sure your documents are correctly formulated.

Step 2: Prepare your documents

When applying for a divorce, you will need certified copies of the following docuements:

• Your official South African identity document,
• Marriage certificate,
• Your children’s birth certificates (if any),
• Your ante-nuptial agreement (if any).

Step 3: Applying for divorce

There are 2 types of divorce; uncontested/unopposed divorces and contested/opposed divorces. Uncontested divorces are easier because both parties agree to the divorce and the divorce settlement.

You can apply directly with the court either at the High Court or Regional Court ( not recommended) 

Alternatively, your divorce attorney will prepare all your documents and approach the Court to apply on your behalf. This is highly recommended as your documents will be correctly drafted, it will save you time and you do not have to run around on your own.

Getting help
You don't need to get through the challenges of going through a divorce, on your own. Tim van Rooyen and Associates are here to help you. Feel free to contact us for more information. 

Divorces can be intricate journeys, and within South African Law, Rule 43 adds depth to the understanding of spousal maintenance. Here, we delve into the realm of spousal maintenance within the context of Rule 34 and how it shapes the financial aspect of divorce.

Deciphering Rule 43: Rule 43 of the Uniform Rules of Court governs the application for maintenance pendente lite, a Latin term meaning "during litigation." This rule allows a party to request temporary spousal maintenance during the divorce proceedings to cover the financial needs of the dependent spouse. 

Factors Considered Under Rule 43: South African courts take various factors into account when considering an application for maintenance pendente lite:

1. Income Disparity: The difference in earnings between the spouses plays a central role in determining the need for support.
2. Standard of Living: The aim is to maintain a reasonable standard of living, similar to that enjoyed during the marriage.
3. Financial Needs: The financial needs and obligations of both spouses are considered to ensure fair support.
4. Contributions: Contributions made to the marriage, both financial and non-financial, are evaluated.
5. Child Care Costs: If children are involved, the costs of caring for them are considered.

Applying for Maintenance Pendente Lite: To apply for maintenance pendente lite, a formal application needs to be made to the court. This involves providing financial disclosure and supporting documentation. The court will then assess the application and make a decision based on the evidence presented.

Modification and Termination: Maintenance pendente lite orders are not set in stone and can be modified or terminated if circumstances change. This underscores the importance of ongoing communication and, if necessary, seeking legal assistance to ensure that the order accurately reflects the current situation. Contact Tim van Rooyen and Associates divorce attorneys in Port Elizabeth for expert assistance. 

In conclusion, Rule 43 of South African Law plays a pivotal role in ensuring financial fairness during the divorce process. However, its application can be complex, highlighting the significance of seeking professional legal guidance. If you're facing a divorce under South African Law and spousal maintenance is a concern, consulting a qualified family law attorney is crucial to navigate this legal terrain and secure your financial stability.

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[Legal Disclaimer] This blog post is for informational purposes only and does not constitute legal advice. Consultation with a qualified family law attorney in South Africa is recommended for accurate guidance tailored to your specific situation within the framework of Rule 34

Ending a marriage is never an easy process as it evolves many emotions and fears. 
However, when the spouses are able to remain civil and agree between themselves on how to divide their assets, deal with custody and contact of the children, and handle any other matters, they may wish to consider an uncontested divorce. It still may be hard for divorcing couples to accomplish this in many instances, but the benefits can be great under the right circumstances.

THE PROS 
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Uncontested divorce offers divorcing spouses the chance to end their marriage quietly, quickly and with dignity.

The most obvious advantage of an uncontested divorce is its cost. This is because the divorce attorney will not need to draft extra litigation documents or letters. 

The low cost is not, however, the only advantage of uncontested divorce. If the level of conflict between the two spouses remains low, an uncontested divorce offers a way to keep it that way. The cooperation extends into the post divorce environment creating a better living environment for the children post divorce. 

You are also more likely to keep more of your assets in your pockets and out of the hands of us lawyers, a liquidator to liquidate the joint estate, actuaries and others required to put on a full divorce proceeding.

THE CONS

An uncontested divorce is not recommended when one spouse is bullying the other spouse to accept terms and conditions that are not fair.  If you are in this situation you should always seek legal advise from an independent attorney to review the proposed separation terms and advise you of your rights. 

Uncontested divorce is also a bad idea when the parties are not able to talk with each other without fighting. If your spouse refuses to have any discussion with you about divorce, or every conversation ends in a screaming match, but you are determined to move forward with divorcing, you will likely need to move forward with a contested divorce and simply rather issue a full detailed divorce summons.

HOW BEST TO DEAL WITH  A UNCONTESTED DIVORCE

The first thing you should do is schedule a consultation with a divorce attorney.  If you are considering a uncontested divorce both parties can consult with one attorney in order to obtain advise on how to divide their assets and how to deal with joint parenting post divorce. 

After the initial consultation the divorce lawyer will then draw up a deed of settlement agreement whereby all the terms and conditions of the divorce are recorded. Generally this will deal with assets such as homes, pensions, motor vehicles to children care and debt. 

The attorney will then draft a divorce summons in order to get the divorce action in court. Thereafter, a hearing date can be arranged. 

If you are considering divorce we encourage you to come discuss the option of uncontested divorce with our divorce attorneys.