The Divorce Bill

Don’t Undermine No-Fault Divorces by Bringing Fault in Through The Back Door

The proposed divorce bill is aimed at changing fault-based divorce to a non-fault system based on irretrievable breakdown.

It is a very positive development.

Marriages are complex relationships which can break down due to the interplay of many factors. No-fault divorce makes it easier for spouses to leave marriages that are violent, unhealthy or unhappy.

It protects children from the fall-out of accusations being hurled back and forth between their parents, and less bitter divorces can make it easier for ex-spouses to cooperate in parenting after the dust has settled.

A no-fault approach can also help avert domestic violence by de-escalating the break-up rather than inflaming it.

The problem is that, as it stands, the bill includes an unnecessary provision on forfeiture of patrimonial benefits that brings ‘fault’ in again through the back door.

What is forfeiture of patrimonial benefits?

Assets in marriages in community of property are normally divided 50-50 if there is a divorce.

This means the spouse who contributed less to the joint estate benefits from the money and property brought in by the spouse who contributed more.

Forfeiture of patrimonial benefits typically allows the spouse who brought in more to request that the spouse who brought in less should not get to keep all the benefits that would result from a 50-50 division of assets. 

Under the current fault-based law, only the ‘guilty spouse’ can be ordered to forfeit benefits.

The bill transposes this approach to the no-fault system by proposing that forfeiture should be possible if the 50-50 split would result in ‘undue benefit’ for the spouse who brought in less – in light of the misconduct of the parties that led to the marital breakdown, the circumstances of the breakdown and the duration of the marriage.

Thus, it reintroduces the concept of fault under the guise of ‘misconduct’.

Problems with the forfeiting of benefits

(1) Forfeiture of patrimonial benefits applies only to marriages in community of property.

(2) Only the spouse who contributed less to the joint estate will have any benefits to forfeit – and this will often be the wife who earned less because of taking on the lion’s share of child-rearing and housework, or because of lingering sex discrimination in job opportunities and wages.

(3) Forfeiture of benefits starts with calculating each spouse’s contribution to the estate. Non-monetary contributions such as child care and housework – usually provided by women – tend to be overlooked or undervalued.

(4) As the court is required to consider ‘misconduct’ in a request for forfeiture of matrimonial benefits, this provision undermines the idea of a no-fault system.

(5) There is no need for a provision on forfeiture of benefits because the bill already has a comprehensive general provision on the division of marital assets that applies to all marriages.

In deciding how to allocate assets, the court is charged to consider a range of factors, including the marital property regime that applied to the marriage, the provisions of any ante-nuptial contract between the parties and the duration of the marriage.

The court is also directed to consider the financial and non-financial contributions made by each spouse – including the value of care for children or extended family members and other domestic duties.

It must also take into account the economic circumstances of each party at the time of the divorce – such as age, income, earning capacity and financial resources and obligations – as well as who will have custody of the children and any maintenance to be provided for children or the ex-spouse. (Contrary to what some MPs seem to think, maintenance for an ex-spouse who has sacrificed financially due to marriage is nothing new.)

Additional factors include the loss of benefits such as medical aid coverage, or benefits expected from a pension or life insurance policy and any adjustments required in terms of the Married Persons Equality Act (1996), which requires mutual decision-making on key financial transactions involving joint estates.

Finances instead of fault

The court can consider any other factors it regards as relevant – but the conduct (or misconduct) of either spouse will be relevant only where the financial resources of the parties are affected.

For example, if one party committed adultery, that is not relevant in itself – but it is relevant if marital assets were used to buy gifts for the extramarital partner.

Thus, the focus in respect of dividing assets under this provision remains tightly on the financial issues.

This general provision allows the court to make adjustments in any divorce – whether the marriage was in community of property or out of community of property – to prevent economic unfairness.

So there is no need to muddy the waters by including an additional provision on forfeiture of benefits that would bring back allegations about ‘misconduct’ in respect of marriages in community of property.

Unnecessarily including forfeiture of benefits will only undermine the goal of allowing couples to divorce without airing their dirty laundry in court.

Parliament, please consider an amendment removing the provision on forfeiture to make the bill’s no-fault approach to divorce clear and consistent.

• *Dianne Hubbard is a legal consultant with many years of experience in public interest law and a passion for trying to make legal issues clear and accessible.