A court may deviate from the chosen marital property system when dividing property of two
accounts:
A) FORFEITURE OF PATRIMONIAL BENEFITS OF MARRIAGE
S9(1) of DA:
- When a court grants a decree of divorce on the grounds of an irretrievable breakdown of the
marriage, it may order that one of the spouses ‘forfeits’ the patrimonial benefits of the marriage
either completely or partly.
This deals with ‘patrimonial benefits of marriage’.
If one spouse contributes almost all of the money in the joint estate, that spouse can never forfeit
benefits bc he/she has not been patrimonially benefitted.
I. How does forfeiture work?
- A spouse cannot forfeit property that he/she brought into the marriage.
- Spouses can only be deprived of their claim to property or assets that their spouses brought into
the marriage.
- Forfeiture orders cannot be made against spouses who contribute more than half the assets to the
joint estate. They will always receive at least half of the estate.
- Essentially, the spouse with the larger accrual never has an accrual claim against the other spouse
and can never be ordered to forfeit in terms of S9(1) of DA.
- Court can order forfeiture of other benefits to which spouse is entitled to according to the
antenuptial contract.
II. When will the court order a forfeiture of benefits?
- Court orders this when the court is satisfied that a spouse will be “unduly benefitted” if the court
doesn’t make the order.
III. How does court decide if spouse will be unduly benefitted?
- The court may consider the duration of marriage, circumstances leading to the breakdown and any
substantial conduct by either of the spouses.
- Wijker v Wijker:
® Whether the spouse whom the order is sought will be unduly benefitted is a factual question.
TOPIC 9: UNMARRIED LIFE PARTNERSHIPS
What are life partnerships:
“a stable monogamous relationship between unmarried people who cohabit and share and intimate
relationship that is in the nature of marriage”
Relationship- induced dependence plays a large role in this section.
Given the nature of this relationship, we cannot quantify the stats on this section. Especially
considering the legal remedies.
Automatic recognition of life partnerships = nope.
Problem with SCA regarding benefits = Volks provided binding precedent (constitutional)
Volks said automatic duty of support doesn’t arise in life partnerships. SCA says this isn’t true for
agreements.
In both Butters and Paixoa, the SCA was successful in reaching an equitable outcome
accounts:
A) FORFEITURE OF PATRIMONIAL BENEFITS OF MARRIAGE
S9(1) of DA:
- When a court grants a decree of divorce on the grounds of an irretrievable breakdown of the
marriage, it may order that one of the spouses ‘forfeits’ the patrimonial benefits of the marriage
either completely or partly.
This deals with ‘patrimonial benefits of marriage’.
If one spouse contributes almost all of the money in the joint estate, that spouse can never forfeit
benefits bc he/she has not been patrimonially benefitted.
I. How does forfeiture work?
- A spouse cannot forfeit property that he/she brought into the marriage.
- Spouses can only be deprived of their claim to property or assets that their spouses brought into
the marriage.
- Forfeiture orders cannot be made against spouses who contribute more than half the assets to the
joint estate. They will always receive at least half of the estate.
- Essentially, the spouse with the larger accrual never has an accrual claim against the other spouse
and can never be ordered to forfeit in terms of S9(1) of DA.
- Court can order forfeiture of other benefits to which spouse is entitled to according to the
antenuptial contract.
II. When will the court order a forfeiture of benefits?
- Court orders this when the court is satisfied that a spouse will be “unduly benefitted” if the court
doesn’t make the order.
III. How does court decide if spouse will be unduly benefitted?
- The court may consider the duration of marriage, circumstances leading to the breakdown and any
substantial conduct by either of the spouses.
- Wijker v Wijker:
® Whether the spouse whom the order is sought will be unduly benefitted is a factual question.
TOPIC 9: UNMARRIED LIFE PARTNERSHIPS
What are life partnerships:
“a stable monogamous relationship between unmarried people who cohabit and share and intimate
relationship that is in the nature of marriage”
Relationship- induced dependence plays a large role in this section.
Given the nature of this relationship, we cannot quantify the stats on this section. Especially
considering the legal remedies.
Automatic recognition of life partnerships = nope.
Problem with SCA regarding benefits = Volks provided binding precedent (constitutional)
Volks said automatic duty of support doesn’t arise in life partnerships. SCA says this isn’t true for
agreements.
In both Butters and Paixoa, the SCA was successful in reaching an equitable outcome
