In terms of Section 9 of the Divorce Act, the court has the discretion when granting a divorce on the grounds of the irretrievable breakdown of the marriage or civil union, to order that the patrimonial (financial) benefits of the marriage be forfeited by one party in favour of the other. The court will only grant such an order if it is satisfied that the one party will be unduly benefited if the forfeiture is not ordered.
In exercising the discretion to order forfeiture, the court must ask itself whether one party would be unduly benefited were such an order not made. In answering this question, the court should take into account factors such as the following:
(1) the duration of the marriage or civil union;
(2) the circumstances that gave rise to the break-down of the marriage or civil union; and
(3) any substantial misconduct on the part of either of the parties and the fact that an undue benefit may accrue to the one party in relation to the other if an order of forfeiture is not granted.
The discretion is restricted to consideration of the above grounds alone. No other factors may be taken into account.
As far as specific factors are concerned, infidelity and abuse can be seen as substantial misconduct and can be taken into account when arguing a forfeiture of benefits claim. Having said that, care must be taken not to elevate misconduct to a consideration higher than the basic requirement of undue benefit – these two factors must go hand in hand.
If you feel that your spouse has unduly benefitted during your marriage and that their substantial misconduct has contributed or even lead to the breakdown of the marriage, it may be in your best interests to seek professional legal advice to establish whether you have a claim or not.