When spouses enter into a marriage in community of property, a single joint estate is
formed—combining all assets and liabilities of both parties. This includes income, property, and
even retirement savings such as pension funds. Upon divorce, this joint estate is typically
divided equally. However, South African law provides an important exception to this rule.

Legal Framework: Section 9(1) of the Divorce Act

Section 9(1) of the Divorce Act 70 of 1979 grants courts the discretion to order forfeiture of the
patrimonial benefits by one party in favour of the other. This can be applied when:
● The marriage has irretrievably broken down,
● One party would unduly benefit from the joint estate if forfeiture is not granted, and
● The court considers factors such as the duration of the marriage, the reasons for the
breakdown, and any substantial misconduct.

Case Analysis: N.A.M v M.S.M
In this recent case, the Plaintiff sought a decree of divorce and an order that the Defendant
forfeit his 50% share of her pension fund. The Defendant, in turn, counterclaimed for equal
division of assets and spousal maintenance, denying the Plaintiff’s claims and blaming her for
the breakdown of the marriage.
The parties were married in 2017 and had one child. While contact and primary residence of the
child were not in dispute, the financial and moral aspects of the divorce proceedings were at the
core of the legal battle.

Plaintiff’s Argument:
● The Defendant failed or refused to find employment and contribute financially.
● Allegations of infidelity, emotional and physical abuse.
● Short duration of the marriage.
● The Defendant is capable of generating an income.

Defendant’s Argument:
● Claimed the Plaintiff abused alcohol.
● Argued he had to care for the minor child, preventing him from working.
● Claimed he contributed by allowing the Plaintiff to stay at his family home without rent.

However, the court found the Defendant’s testimony vague, lacking in evidence, and
unsubstantiated. He also failed to prove his entitlement to spousal maintenance or provide a
valid calculation of the amount he sought.

The Outcome
The court held that the Defendant made no significant contributions to the joint estate and was
guilty of substantial misconduct. If the division were equal, he would be unduly benefitting. As a
result, the court granted forfeiture of the Defendant’s patrimonial benefits in favour of the
Plaintiff.

Conclusion
This case reinforces that a marriage in community of property does not guarantee an equal split
upon divorce. Where one party has failed in their duties or contributed to the breakdown of the
marriage through misconduct, the court can and will intervene to ensure that justice prevails.