FACTORS JUSTIFYING FORFEITURE OF PATRIMONIAL BENEFITS ORDERS Molapo v Molapo (2013) ZAFSHC 29 14 Mar 2013

Marriage in community of property carries major implications for ownership of the parties’ assets, liability for their debts as well as their capacity to enter into legal transactions. To some extent, the same may be true for marriages out of community of property with the application of the accrual system, more particularly at the dissolution of such a marriage. Community of property entails the pooling of all assets and liabilities of the spouses immediately on marriage, automatically and by operation of law. The same regime applies to assets and liabilities which either spouse acquires or incurs after entering into the marriage. The joint estate created by marriage in community of property is held by the spouses in co-ownership, in equal and undivided shares. The natural consequence of holding the parties to their marriage agreement is that on divorce the joint estate will be divided equally between them unless a forfeiture of patrimonial benefits order is made. Where it has been established, forfeiture of patrimonial benefits is a financial patrimonial consequence of marriages in community of property and marriages out of community of property were the accrual system is applicable.Section 9(1) of the Divorce Act (DA) is the basis upon which the court can decide to grant forfeiture of patrimonial benefits. The principles relating to forfeiture of patrimonial benefits in respect of marriages in community of property remain probably the most misunderstood aspects of South African matrimonial law, more especially in practice. This section lists three factors which courts should take into account when granting an order for forfeiture of patrimonial benefits. First, this paper seeks to discuss the case of Molapo v Molapo, with a view to critically analyse the approach adopted therein with regard to forfeiture of patrimonial benefits. The author shall be arguing that the court, when ordering partial forfeiture of benefits, in this case was influenced partly by what it regarded to be fair in the context of this case, notwithstanding the fact that the principle of fairness has been rejected by the Supreme Court of Appeal. Secondly, the author shall also demonstrate that in Molapo v Molapo the court failed to provide a basis upon which it apportioned the proceeds of the main asset in the joint estate to the parties. Finally, in order for a court to be able reach a decision regarding forfeiture of patrimonial benefits it is important for a party claiming forfeiture to adequately make out a case for forfeiture of patrimonial benefits. The author shall argue that the party in whose favour forfeiture of patrimonial benefits was awarded in Molapo v Molapo failed to properly make out a case thereto in her pleadings