Forfeiture of patrimonial benefits and the dissolution of marriage through death: <i>Monyepao v Ledwaba</i> (1368/18) [2020] ZASCA 54 (27 May 2020)

Abstract

Section 9 of the Divorce Act 70 of 1979 provides for the forfeiture of patrimonial benefits when a decree of divorce is granted on the ground of the irretrievable breakdown of a marriage. This case note discusses the possibility of an order for forfeiture of patrimonial benefits when a marriage dissolves after death under certain circumstances. It follows on the Supreme Court of Appeal decision in Monyepao v Ledwaba (1368/18) [2020] ZASCA 54 (27 May 2020). The respondent, the estranged first surviving spouse, and the deceased were married in terms of customary law in 2007. In 2008 the deceased left the matrimonial home. In 2009 the respondent entered into a civil marriage with another person. In 2010 the deceased also entered into a customary marriage with the appellant, the second surviving spouse. In 2012 the deceased died. Following his death, both the appellant and the respondent, as surviving spouses, were appointed co-executors of the deceased estate. The appellant sought an order directing the Master to withdraw the appointment as co-executor of the first surviving spouse on the ground that she had renounced her earlier customary marriage to the deceased when she entered into a civil marriage with another person. Alternatively, she sought an order in terms of section 9 of the Divorce Act that the first surviving spouse forfeit patrimonial benefits in favour of the deceased estate. The High Court, Polokwane granted the order. However, on appeal the full bench, Polokwane overturned the decision of the court a quo. The appellant took the decision of the full bench on appeal to the SCA. The SCA dismissed her appeal and upheld the decision of the full bench on the ground that a forfeiture order can be made only during divorce proceedings and it may be brought only by a party to the marriage and not by a third party. This note turns on this aspect of the decision. It will be argued that a forfeiture order should be available when a marriage is dissolved through death. It will also argue that a second spouse is a party to a customary marriage.