Substantial misconduct as a factor in the determination of forfeiture of patrimonial benefits at divorce in South Africa

Abstract

Forfeiture of patrimonial benefit in the context of South African Divorce law has undergone several legislative changes. Previously, before the enactment of the Divorce Act , the common law principles were used by the courts to determine whether one of the consortiums forfeited the benefit in the marriage. Under the contemporary constitutional dispensation, substantial misconduct is regarded as one of the factors that could be invoked to determine forfeiture of patrimonial benefit. There are no clear guidelines for the courts on how to grant forfeiture of patrimonial benefits on the grounds of substantial misconduct as the question remains whether a fault-based criterion of forfeiture is appropriate in a no-fault divorce system in light of the identified lacunae in the legislation.