Mrs Brown approached our offices to assist her with her divorce proceedings. She is a high net worth client with several investments and other assets. Mrs Brown advised our offices that Mr Brown had engaged in several extra marital affairs, and that all throughout their marriage, Mr Brown had not contributed towards the acquisition of assets. Mrs Brown had effectively accumulated all of the assets during the marriage, and she naturally did not believe it would be fair for Mr Brown to benefit financially from the divorce given his conduct.

In terms of Section 9(1) of the Divorce Act, the court has discretion when granting a divorce on the grounds of irretrievable breakdown of a marriage in community of property to order that the patrimonial benefits of one party be forfeited in favour of the other. This means that, taking the couple’s circumstances into account, the court may order that one party forfeits their patrimonial benefits to the other where it finds that the party will be unduly benefited in relation to the other as a consequence of the marriage. When deciding whether or not to grant a forfeiture order, the court will consider the duration of the marriage, the circumstances which gave rise to the break-down of the marriage, and any substantial misconduct on the part of either spouse if applicable to the circumstances.

With this in mind, we advised Mrs Brown to seek an order from the court that Mr Brown forfeit his benefits considering the circumstances of the parties and the conduct of Mr Brown causing the breakdown of the marriage. When hearing the matter, the Court agreed with Mrs Brown’s forfeiture claim. As a result, Mrs Brown’s substantial asset base has been protected.

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Author – Tal Ardenbaum

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