Forfeiture of Benefits Upon Divorce and its Constitutionality

11 May, 2016

Section 9 of the Divorce Act states that when a decree of divorce is granted on the grounds of the irretrievable break down of a marriage, the court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part, if the court, having regard to the duration of the marriage, the circumstances which gave rise to the breakdown thereof and any substantial misconduct on the party of either of the parties, is satisfied that one party will be unduly benefited should an order for forfeiture not be made.

In the case of MC v JC (2016), the court suggested that section 9(1), which provides for forfeiture on the grounds of substantial misconduct, might be unconstitutional in that it might infringe the right to equality as it placed the party who had committed substantial misconduct in an unfavourable position when it came to the distribution of the patrimonial benefits of the marriage. It was further suggested that the section could deprive a spouse of the right to dignity.

The Court did not decide the issue however ordered the appellant to join the Minister of Justice and Correctional Services and the Speaker of Parliament, as the legislative body, as parties to the case, which would then empower the Court to declare the provisions of section 9 invalid for inconsistency with the Constitution.