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Question
Posted by: TB | 2010-07-19

Offer to Settle / forfeiture of benefits

Forfeiture of Benefits

I am trying to settle on some of the contested issues and make a written offer to my soon to be ex

One problem that we have is that my ex wants half of my provident fund and since we where married COP, this seems fair and even reasonable on face value but I have so far contested this for the following reasons.

The duration of our marriage: we where married for a little over one year and the provident fund is 11 years old.

Her misconduct: After the separation and after the divorce summons was served , she " cashed in"  and spent her provident fund therefore I now cannot make a claim against hers and in my opinion, she will unjustly benefit if I settle of giving her half of mine.

Circumstance that led to the breakdown of the marriage: I left her after finding out that she was sleeping with her boss and because of her neglectful behavior towards our marriage, home and children (I have proof and affidavits from people)

I have offered to give her half of the amount that accumilated in the fund for the period that we where married only but she refused this.

Are the above factors valid reasons to ask her to forfeit her rights to my provident fund ? or am I just going to look like I am the one being difficult ?.

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Our expert says:
Expert ImageFamily law expert

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

The information provided does not constitute a diagnosis of your condition. You should consult a medical practitioner or other appropriate health care professional for a physical exmanication, diagnosis and formal advice. Health24 and the expert accept no responsibility or liability for any damage or personal harm you may suffer resulting from making use of this content.

2
Our users say:
Posted by: TB | 2010-07-22

Great Thanks

Reply to TB
Posted by: family law expert | 2010-07-21

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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