key to the study guide - Name

Three factors in
section 9
Are they cumulative?
fRole of misconduct
LEARNING OUTCOMES
The purpose of this study unit is to enable you to
(1) explain what forfeiture of benefits is
(2) explain what the requirements for forfeiture are
(3) explain whether the factors listed in section 9 of the Divorce Act are
cumulative
(4) explain the role of misconduct in respect of forfeiture
(5) explain what the requirement of undue benefit means in respect of
forfeiture and how it is proved
(6) explain whether, by using forfeiture of benefits, issues of fairness and
justness can be employed to deviate from the consequences of the
matrimonial property system selected by the parties
(7) set out the approach which the court of appeal must follow when
hearing an appeal in respect of an order for forfeiture
(8) explain what can be forfeited
PRESCRIBED MATTER
Study
. Prescribed textbook 131±133 ``12.4 Forfeiture of patrimonial
benefits''
. Wijker v Wijker in your prescribed casebook 207±214
. WattvWattin your prescribed casebook 216±219
CONTENT OF THIS STUDY UNIT
1 THE REQUIREMENTS FOR A FORFEITURE ORDER
With regard to the requirements for a forfeiture order, you must firstly
know that the court can order total or partial forfeiture. It will decide
what order to make by taking into account the three factors listed in
section 9 of the Divorce Act. The first question which arises in respect of
the three factors is whether they are cumulative and whether they must all
be present before a forfeiture order will be made. You must study the
discussion of this issue at pages 131±132 of your textbook. In addition,
you must study WijkervWijkerin your casebook, especially the first five
paragraphs of the note on pages 212±213 of your casebook. The second
question in respect of the three factors is what role misconduct plays. This
issue is also discussed on pages 131±132 of your textbook and in Wijker v
Wijker (especially the fourth and sixth pars on p 213 of your casebook).
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