Should a spouse guilty of ‘substantial misconduct’ such as adultery be punished in terms of the division of the marital property upon divorce?

Section 9(1) of the Divorce Act 70 of 1979 provides:

“(1) When a decree of divorce is granted on the ground of the irretrievable break-down of 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 break-down 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 benefited.”

 In a recent case involving a couple from Mpumalanga who got a divorce after 26 years of marriage because the woman was having extra marital affairs, our courts were encouraged to take a closer look at whether the Divorce Act is outdated. It was held that the woman forfeited some of the financial benefits she and her husband had acquired during the subsistence of their marriage because she had cheated on her husband on multiple occasions. The parties were married out of community of property with an antenuptial contract that included the accrual system. The court ruled in favour of the husband and granted an order of partial forfeiture of marital benefits against the wife. The wife was also ordered to pay the costs. She then appealed the magistrate’s order in the High Court.

The Judge in the High Court agreed with the finding that the woman was guilty of misconduct however the Judge stated that this was not the only cause of the breakdown of the marriage as he found that the husband “reluctantly” agreed that he rejected the efforts made by his wife to reconcile. The Judge further held that a marriage relationship does not break down due to the conduct of one party alone. It is trite law that a party cannot benefit from his/her own asset but only from an asset brought into the estate by the other party. Thus, the wife could not forfeit the assets brought into the estate through her contributions. The Judge also held that the understanding of section 9(1) was that a spouse should not benefit financially from a marriage which he/she had ruined. However, in 2014 in DE V RH, the Constitutional Court held that section 9 is ‘archaic and outdated as it was aimed at punishing a party’.

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