Factors justifying forfeiture or patrimonial benefits orders: Molapo vs Molapo

Abstract

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 (Tomlin v London and Lancashire Insurance Co Ltd 1962 (2) SA 30 (D) 33C-D; and W v W 2011 (1) SA 545 (GNP) par 17). 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 (Heaton South African Family Law 3ed (2010) 67). 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 (Van Heerden, Cockrell, Keightley, Clark, Sinclair and Mosikatsana Boberg's Law of Persons and the Family 2ed (1999)185). 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 (DT v DA Case no (15402/2010) ZAGPJHC/2013 Unreported case par 18). 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.