Forfeiture of benefits in a divorce means that one of the two parties within the union is ordered by the court to forfeit his or her benefits of the marriage, either wholly or in part. Before the South African Divorce Act was updated, this decision was often made according to misconduct within the marriage. Nowadays, misconduct is just one of the factors that the court will consider before making a judgement. Other factors that the court will take into account include the length of the union, as well as the circumstances that ultimately led to its end.

What You Need to Know

If a spouse is to approach the court for forfeiture of benefits, he or she needs to do so before the divorce itself is finalised. The party seeking the forfeiture will also need to provide the court with proof and full disclosure in terms of why he / she believes that he / she is entitled to the forfeiture. If the other party is indeed ordered to forfeit a patrimonial benefit, he / she will lose the right to fifty per cent of the assets in the joint estate or experience a partial loss (the exact percentage will be determined by the court).

Marriage In and Out of Community of Property

Many mistakenly think that forfeiture of benefits only applies to those marriages in community of property. However, this is not the case. Forfeiture of benefits applies to marriages in community of property as well as marriages out of community of property with the inclusion of the accrual system.

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