In South Africa, if you are married in community of property, the default position is simple: when you divorce, the joint estate is divided equally. Each spouse walks away with 50% of the assets - and 50% of the debts.

But what happens if one spouse has been deceitful, reckless, or wasteful with the joint estate? Must the innocent spouse still settle for half?

This is where Section 9 of the Divorce Act 70 of 1979 comes in.

What Does Section 9 Say?

Section 9 of the Divorce Act gives the court discretion, in cases of divorce where spouses are married in community of property, to order an unequal division of the joint estate if one spouse’s conduct has been “seriously prejudicial to the marriage.”

In other words, while the general rule is 50/50, the court can deviate from this rule where fairness demands it.

Examples of Deceitful or Prejudicial Conduct

A spouse could lose part of their 50% share if they are found to have:

• Hidden assets from the other spouse;
• Incurring excessive debts recklessly, such as gambling, fraud, or frivolous spending;
• Squandering marital assets deliberately;
• Misusing joint funds for personal gain or an extramarital affair; and
• Running up liabilities that serve no benefit to the family or marriage.

In such cases, the innocent spouse can argue that it would be unjust to divide the estate equally.

How Courts Decide

The court will consider factors such as:

• The nature and seriousness of the misconduct;
• The extent to which it prejudiced the other spouse or the marriage;
• Whether the conduct was deliberate, reckless, or fraudulent; and
• The overall fairness of the division.

Importantly, the court has wide discretion - there is no set formula, and each case is judged on its own facts.

Limitations of Section 9

• Section 9 does not apply automatically - the innocent spouse must apply to court for forfeiture of benefits or unequal division;
• Proving deceitful conduct requires evidence. Suspicion alone is not enough;
• The remedy is exceptional - South African courts are generally cautious in departing from the 50/50 rule.

Final Word

While divorce in community of property usually means a strict 50/50 split, Section 9 of the Divorce Act allows the court to protect an innocent spouse when the other has been deceitful or reckless.

If you believe your spouse has hidden assets, run up reckless debts, or wasted your joint estate, you may be entitled to claim more than half.

At VDM Attorneys, our family law specialists help clients build strong cases under Section 9, protecting their rights and ensuring that divorce settlements are fair - not just equal.

📞 Contact us today to discuss your options if you suspect misconduct in your marriage.