Forfeiture in the divorce proceedings

In a recent decision by the Gauteng High Court, a divorce case between J C-T (Plaintiff) and ST (Defendant) addressed issues surrounding the division of assets and claims for forfeiture under the Divorce Act 70 of 1979. The couple, married in community of property in 2016, separated after a relationship marred by conflict. The Plaintiff, a UK citizen, argued for the forfeiture of specific assets, including the marital home, an Audi A3, and funds held in a South African investment account, claiming she had provided the majority of financial contributions. The Defendant, however, countered with his own claims and sought the division of assets.

Facts of the Matter

The Plaintiff and Defendant had different financial backgrounds, with the Plaintiff contributing significant assets from her previous marriage. Despite this, the Defendant controlled the investment account, with the funds purportedly meant to support their lifestyle jointly. After the Plaintiff left for the UK, she claimed the Defendant continued benefiting from her assets and income without her consent. Additionally, despite the Plaintiff's attorney’s instruction to preserve the funds, the Defendant withdrew substantial amounts, leading the Plaintiff to seek forfeiture for those dissipated funds.

Court Findings

The court considered three primary factors under Section 9(1) of the Divorce Act: the marriage duration, the circumstances surrounding the breakdown, and any substantial misconduct by either party. Notably, the court found that:

1. Investment Funds: The Defendant’s unauthorized withdrawal and failure to return the funds as ordered constituted substantial misconduct. This justified a forfeiture order against him concerning these funds.

2. Other Assets (Home and Audi A3): While the Plaintiff contributed to purchasing these assets, the court found her claim for forfeiture unsubstantiated. It noted that both parties lived off the Plaintiff's contributions, and the Defendant managed property maintenance since her departure.

3. Counterclaim: The Defendant's counterclaim for forfeiture failed, as the assets in question were primarily purchased by the Plaintiff, disallowing him from claiming forfeiture on her contributions.

Conclusion

The court granted a decree of divorce and ordered forfeiture solely of the funds withdrawn from the investment account. Both parties were instructed to bear their own legal costs, with the joint estate's remainder divided equitably. This judgment underscores the importance of equitable treatment in asset division within short marriages, balancing misconduct and contributions against the legal risks associated with community property marriages.