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Question
Posted by: Herman | 2010/05/22

Divorce Urgen Advice please!

i am married in community of property and my wife absconded after 6 months having an affair with her old boyfriend and now she wants half of everything.....can she do this?????????

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Our expert says:
Expert ImageFamily law expert

I know it must be quite emotional for you, but there is good news. Altough the marriage regime that you in means that she will be entitled to half of the estate you can claim that she forfeits her 1/2 share of the assets. It is important to note that you will have to claim this in your Summons and you will have to lay down the basis of your claim thoroughly on the pleadings.

An innocent spouse cannot sue a guilty spouse for damages as a result of adultery, although the latter may be prevented on divorce from deriving any financial benefit from the marriage by reason of his or her conduct, this is normally referred to as a forfeiture of the patrimonial benefits.

In a marriage in community of property, division of the joint estate is a natural consequence of a divorce. Forfeiture of benefits of the marriage in community of property can however be claimed by a party. The court would have regard to various factors i.e. the duration of the marriage, circumstances leading to the breakdown, misconduct of one of the parties etc.

Bertus Preller
www.divorceattorney.co.za
bertus@divorceattorney.co.za

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Our users say:
Posted by: G-Dad | 2010/05/24

Herman just to add to that, it depends also what you owned before getting married and is registered on your name only, example if she had assets like a house ect when you got married to her then you can not ask the courts to forfeit her share, it is purely about gains, in other words you had property cars ect before you met her, a good way for her to make instant buck would be to try to take you to the cleaners, then she make your life a living hell or start cheating ect to force a divorce, then you can ask the courts for a forfeit.
If you both started of with nothing and build everything up together then you have a small chance if any at all to ask for a forfeit, specially if everything is in both your names.

The duration of the marriage is also important, if you were married for a short while then you can request a forfeit, if you were married for a long time like 15 or 20 years, then it would be unfair and I doubt that the courts will grant a forfeit in such a case.

It is important to request the forfeit on the initial summons, she will then counter claim, in my case I spelled out in detail what I keep as my own and reasons why, example, pension which I had 10 years prior to marriage, property I owned prior to marriage, all the motor vehicles I owned accept the 1 she was driving, money, policies ect, if you forget something then she will succeed on claiming on it.

Reply to G-Dad
Posted by: Herman | 2010/05/22

dear family law expert, thanks for this great advice, it really put my fears at ease!!!!!!!!!!!!!!!!!

Reply to Herman
Posted by: family law expert | 2010/05/22

I know it must be quite emotional for you, but there is good news. Altough the marriage regime that you in means that she will be entitled to half of the estate you can claim that she forfeits her 1/2 share of the assets. It is important to note that you will have to claim this in your Summons and you will have to lay down the basis of your claim thoroughly on the pleadings.

An innocent spouse cannot sue a guilty spouse for damages as a result of adultery, although the latter may be prevented on divorce from deriving any financial benefit from the marriage by reason of his or her conduct, this is normally referred to as a forfeiture of the patrimonial benefits.

In a marriage in community of property, division of the joint estate is a natural consequence of a divorce. Forfeiture of benefits of the marriage in community of property can however be claimed by a party. The court would have regard to various factors i.e. the duration of the marriage, circumstances leading to the breakdown, misconduct of one of the parties etc.

Bertus Preller
www.divorceattorney.co.za
bertus@divorceattorney.co.za

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