Lecture 15

Question 1

Forfeiture of patrimonial benefits

Answer 1

STEP 1
Is there a patrimonial benefit?
IF YES
STEP 2
Is the benefit undue?

Question 2

Marriage out of community of property

Answer 2

1) Benefits in marriage contract
2) Section 9 of Matrimonial
Property Act: right to accrual

Question 3

Meaning of patrimonial benefits?

Answer 3

Watt v Watt: any benefit “derived
either by virtue of the legal effect of
the marriage in community of
property or by virtue of a provision
made in an antenuptial contract

Question 4

Forfeiture of patrimonial benefits: Is the benefit undue?
Meaning of “undue”: KT v MR
* Not general fairness and equity
* Discretion exercised by court with regard to only 3 factors:

Answer 4

1) Duration of the marriage
2) Circumstances that lead to the
breakdown
3) Substantial misconduct
(Matyila v Matyila; Klerck v Klerck)

Question 5

Problems with forfeiture orders:

Answer 5

1) Forfeiture is limited to spouse who contributed least to marriage.

2) Spouse who made the larger financial contribution is thus protected
from a forfeiture order.

3) System still currently favours husbands, who generally own more assets than their wives – could potentially lead to gender discrimination.

4) Only a wife’s illicit behavior is punished

Question 6

Objective of granting a redistribution order:

Answer 6

1) Just and equitable distribution of assets
2) where spouses built individual assets
3) from pooled resources/contribution from other spouse.

Question 7

Redistribution orders can only be made in respect of unions where:

Answer 7

1. Marriage concluded before commencement of Matrimonial Property Act – thus out of community of property excluding profit, loss and accrual

2)Entered into in terms of any law applicable in a former homeland without entering into an antenuptial contract

Question 8

Redistribution order

Answer 8

1) Section 7(3) - Qualifying prerequisites
-When such order may be granted
2) Section 7(4) - Requirements
what to prove to be successful
3) Section 7(5) - Factors
* court considers determining if order is
fair and just

Question 9

G v Minister of Home Affairs (Greyling)
Declared section 7(3)(a) of the Divorce Act inconsistent with Constitution

Answer 9

1) Discriminatory against spouses who entered into marriage out of community of property and exclusion of profit and loss after enactment of the MPA.

2)Redistribution order should be possible regardless of when marriage was concluded.

3) Still limited application of redistribution orders to civil marriages out of community of property.

4) Absence of cut-off date with regard to marriages concluded in any homeland
confirms unequal treatment of spouses

Question 10

WLCT v President of the RSA
Expressly made section 7(3) of the Divorce Act applicable to Muslim marriages

Answer 10

1) Since all Muslim marriages are treated as out of community of property.

2) Pending new legislation (interim arrangements).

3) Only applicable to Muslim marriages subsisting at 15 December 2014 or in respect of which legal proceedings had not been finalized

Question 11

Section 7(3): Qualifying prerequisites
In case of civil marriage:

Answer 11

➢ Must be out of community of property
➢ Date of conclusion of marriage irrelevant
➢ Can therefore also be applied to civil union in terms of CUA
➢ Parties must not have come to an agreement regarding division of assets

Question 12

In case of customary marriage:

Answer 12

➢ Discretion of court not limited
➢ Can be considered regardless of matrimonial property system or date of marriage or whether marriage
is monogamous or polygynous
➢ Only consideration is what is just and equitable

Question 13

In case of Muslim marriage:

Answer 13

➢ Applies to marriages out of community of property (because Muslim marriages deemed out COP by
default)
➢ In case of polygynous marriages discretion also wide and depends on what is deemed equitable
➢ Will only apply to Muslim marriages subsisting at 15 December 2014, or which had been terminated in
terms of Sharia law as at 15 December 2014, but in respect of which legal proceedings have not been
finally determined.

Question 14

Redistribution order: Requirements to prove
Section 7(4) of Divorce Act – Court must be satisfied that:

Answer 14

1) Party requesting redistribution contributed directly or indirectly to maintenance or increase of estate of the other party
(Beaumont v Beaumont; Kritzinger v
Kritzinger; G and Gumede)

2. It has to be fair and just to order division.

Question 15

Section 7(5) of Divorce Act – Factors the court must take into account for determining the extent, form and mode of transfer:

Answer 15

1) The contribution
2) Existing means and obligations of parties
3) Donations made by on spouse to other
4) Order for forfeiture of patrimonial benefits
5) Any other factor

Question 16

Forfeiture of patrimonial benefits Redistribution
Purpose:

Answer 16

Protect spouse’s assets who contributed more to the marriage against a claim by other spouse who would unduly benefit from the asset-sharing

Question 17

Forfeiture of patrimonial benefits
Must prove:

Answer 17

1) Marriage dissolved due to irretrievable breakdown

2) Person against whom claim is instituted would receive a patrimonial benefit as result of property system.

3) Receipt of such patrimonial would be undue having regard to duration of marriage, circumstances that led
to breakdown and/or substantial misconduct

Question 17

Forfeiture of patrimonial benefits Application:

Question 18

Redistribution
Purpose:

Answer 18

To achieve a just and equitable distribution where one spouse was able to accumulate more individual assets from pooled contributions

Question 19

Redistribution
Application:

Answer 19

1) Previously, marriage with no profit sharing
2) i.e. out of community of property entered into prior to MPA.
3) Has been expanded to also include marriages after MPA
(Greyling)
4) All customary marriages regardless of when marriage was entered into and which property system applies (Gumede).

Question 20

Redistribution: Procedure

Answer 20

Section 7(3)-(6) of Divorce Act

Question 21

Redistribution: Must Prove

Answer 21

1) Marriage within scope of s 7(3) and recent cases
2) Spouse making application made a contribution to growth or maintenance of other spouse’s estate
3) Redistribution would be fair and just with reference to factors like those mentioned in s 7(5).