n South African Law Journal - The rule that a spouse cannot forfeit at divorce what he or she has contributed to the marriage : an argument for change




Section 9 of the Divorce Act 70 of 1979 allows for an order that one of the spouses may forfeit some or all of the financial benefits of the marriage at the time of divorce. South African courts have interpreted this remedy so as to limit forfeiture to the spouse who contributed least to the joint estate or whose separate estate shows the smaller accrual, while the spouse who had made the larger financial contribution to the marriage is protected from forfeiture. This article provides three sets of arguments questioning this interpretation. First, it shows the existence of Roman and Roman-Dutch authorities to the effect that a spouse could forfeit assets which he or she had contributed to the marriage. It also highlights early South African case law holding that both financial and non-financial contributions should be taken into account when making a forfeiture order at divorce. The article also analyses case law to illustrate how the courts' treatment of marital misconduct and contribution operate to favour the kinds of behaviour typically engaged in by men, while devaluing the behaviour of typical wives. This may amount to discrimination on the basis of gender and may therefore be vulnerable to constitutional challenge. The article concludes by looking forward to a long overdue overhaul of South African family law legislation, specifically the Divorce Act. It examines the role which a general redistributive discretion should play in ameliorating the consequences of the chosen matrimonial property regime at the end of marriage, but cautions that, in sexist societies, judicial discretions are often exercised in ways which benefit men at the expense of women.


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