Misconduct as a reason for the irretrievable breakdown in the marriage
One of the first questions an attorney asks his/her client relates to the reasons for the breakdown in the marriage. Very often there is no meaningful communication between the parties, the parties have lost love and respect for each other, and by virtue of this one party has withdrawn himself or herself from the other party.
If the marital breakdown resulted from the misconduct of only one party, this misconduct will definitely be taken into account in determining how the assets should be divided, depending no doubt on the matrimonial regime according to which the parties are married. If misconduct is seen to be “gross” the courts will take this into account. Examples of misconduct are:
the abuse of alcohol or drugs;
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extra marital affairs;
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when children are born during the marriage and the married couple are not both biological parents;
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physical abuse by one of the parties;
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emotional abuse.
A more recent example of a case in the Southern Divorce Court was where the Magistrate awarded 100% forfeiture of a fixed property in favour of a man where his wife had been found to have contracted HIV during the course of the marriage. The Magistrate was of the opinion that this was a form of “gross misconduct”.
In another case recently the woman only told the man after three years that a child was not biologically his. This was also seen to be “gross misconduct”.
In a certain sense all marriages are “partnerships”, but not necessarily in the legal sense of the word. It is in other words not necessary that assets be divided equally between the spouses on termination, and misconduct plays a major factor in determining distribution of assets.
written by P.M. Baker, a divorce attorney.