M M M v Z M (31 May 2021)

/ / 2022, City Of Johannesburg, Estates and Trusts, News

Article by Savera Singh, checked by Celeste Frank, Associate and released by Jordan Dias, Associate at Schindlers Attorneys

26 September 2022


The Appellant the Respondent were married to each other in community of property on 24 December 2005 and one minor child who was born of the marriage on 21 August 2006. The parties were married for approximately 13 years; during which, they spent most of their time apart and living disjointed lives.

On 18 August 2016, the Respondent instituted divorce proceedings wherein she sought a decree of divorce, the division of the joint estate and an order that 50% of the Respondent’s pension interest be assigned to her. On 19 September 2016, the Appellant delivered his plea and counterclaim. In his counterclaim, the Appellant pleaded that the Respondent should relinquish the benefits arising from the marriage in community of property due to her in terms of section 9(1) of the Divorce Act 70 of 1979 (“the Divorce Act”).

Section 9(1) of the Divorce Act provides:

When a decree of divorce is granted on the ground of the irretrievable break-down of a marriage, the Court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part, if the court, having regard to the duration of the marriage, the circumstances which gave rise to the break-down thereof and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefitted.

Regional Magistrates’ Court

On 2 April 2019, the Regional Magistrate Hoosen ordered the Appellant’s counterclaim to be amended to clarify that he was seeking an order for the forfeiture of the patrimonial benefits arising from the marriage in community of property.

As the matter developed, the only dispute to be adjudicated was the Appellant’s claim for forfeiture. It was common cause during the trial that the “benefits” that the Appellant sought the Respondent to forfeit were his pension interest and the matrimonial home.

Magistrate Hoosen dismissed the application for forfeiture and granted a decree of divorce, division of the joint estate, and orders pursuant to which 50% of the value, at the date of divorce, of the parties’ respective pension interests be paid to each other.

High Court

The Appellant appealed against Magistrate Hoosen’s judgment on multiple grounds. More specially, the correctness, findings, and evaluation of the three considerations as outlined in section 9(1) of the Divorce Act

In his judgement, in evaluating the evidence and making factual findings, Magistrate Hoosen found that the Respondent would benefit from a division of the joint estate in that it was a common occurrence in marriages concluded in community of property that one party usually benefits more than the other. Magistrate Hoosen stated, further, that it could not be found that the Respondent did not make any contribution to the joint estate. Rather, she did so by assisting with the running of the household and caring for the minor child. The judgment focused on the consideration of whether any such benefit was undue having given regard to the three key considerations as outlined in section 9(1) of the Divorce Act.

The appeal was dismissed, without consideration of the three key considerations of section 9(1), due to the Appellant having failed to discharge the onus of proof that rested on him to demonstrate the extent of the benefit the Respondent would have derived from the division of the joint estate. Therefore, there was no substantial evidence which enabled the High Court to assess whether such benefit was factually undue in light of the three key considerations in section 9(1) of the Divorce Act.

A spouse who is married in community of property is entitled, by virtue of the marital property regime which governs the marriage, to share in the joint estate of the other spouse. Irrespective of whether such benefit is substantial, it cannot be said to be “undue” and is rather an indisputable consequence of a martial regime which was chosen by both parties, of their own volition and free will at the conclusion of their marriage.


This case illustrated the sovereignty of the elected marital regime selected at the conclusion of the marriage of two individuals in divorce proceedings, with specific focus on the forfeiture of benefits in the division of a joint matrimonial estate.

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