Section 9 of the Divorce Act 1970 has gained a lot of media attention recently due to court cases such as K.W.M v P.J.M and MNB v MMP. Section 9 allows the Courts to make an order for the patrimonial benefit of the marriage to be forfeited by either party in favor of the other, either in whole or in part, after taking all necessary factors into account.

The factors that need to be taken into account as stated by Section 9 of the Divorce Act 1970 are:

• Duration of marriage:





• The circumstances which gave rise to the breakdown of the marriage:





• Substantial misconduct by either party, and 





• If the court is satisfied that if the order is not made the one party will be unduly benefited in relation to the other party.

Section 9, aims to uphold the common law position that a spouse should not unduly benefit from a marriage in which they caused the intentional breakdown of.

Although Section 9 makes provision for the forfeiture of a spouse’s portion of the joint estate it should be noted that each case will be assessed on the merits that are presented to the courts and taking into account the above-mentioned factors.

Therefore, Section 9 may seem clear-cut and many of the questions have been answered through case law, however, there are still many issues that remain and that need to be answered.

Contact ann-sue@mostertlegal.com for any questions with regard to the merits of your case with regard to forfeiture.

RECENT DIVORCE HEARING MAY AFFECT ANTENUPTIAL CONTRACTS IN SOUTH AFRICA

WHAT IS AN ANTENUPTIAL CONTRACT?

An antenuptial contract, often better known as a prenup, is a written contract entered into by a couple prior to marriage/civil union which allows the parties to select and control many of the legal rights they acquire upon marriage and what happens when the marriage is dissolved by either death or divorce. This ensures that each spouse retains their separate estates and is not liable for the other spouse’s debts.

The consequence of entering into an antenuptial contract is that the marriage will be considered as being married out of community of property.

CONSEQUENCES OF MARRIAGE OUT OF COMMUNITY OF PROPERTY:

Marriage out of community of property has a number of consequences with regard to the parties’ assets namely:

• If either of the spouses had assets prior to entering into the marriage they may exclude the assets from the joint estate.





• The parties may protect each of their individual assets by registering the asset in the name of the party who intends to retain control over the asset. This means that it will be safe if the other spouse undergoes sequestration.

However, a recent ruling in the Supreme Court of Appeal may affect prenups as it ruled that separate agreements from a prenup are valid and enforceable.

This means that although the parties already agreed to a prenup, a separate agreement will also be seen as valid and therefore legally enforceable between the two parties. This means that the patrimonial consequences that arise from the dissolution of the marriage would flow from both the prenup and the separate agreement.  

SUPREME COURT OF APPEAL RULING:

The case in question involved a married couple who signed a prenup before marriage resulting in them being married out of community of property with the exclusion of accrual. The spouses also signed a separate agreement which stated “Mr. B would in the event of divorce provide Mrs. B with additional support including life-long maintenance, payment of additional costs and donating specific assets.”

A dispute resulted in the parties taking the matter to court as Mrs. B wished to enforce the separate agreement, which resulted in the SCA ruling that both the prenup and the separate agreement were enforceable. The effect of this is that the two agreements were aligned and Mr. B and Mrs. B would have to adhere to both the prenup and the separate agreement.

WHAT ARE THE EFFECTS:

The effects of this ruling are that although a prenup creates general rules for the dissolution of marriages out of community of property and protects the assets of each spouse, this can be supplemented by a separate agreement that creates separate rules at the dissolution of the marriage.  Therefore, both the prenup and the separate agreement must be adhered to by both parties.