We recently covered a story about a husband’s forfeiture of his right to his wife’s pension benefit on divorce, even though they were married in community of property, due to his complete lack of financial contribution to the marriage, compounded by his infidelity. In the case below, a forfeiture of pension rights was overturned on appeal and an order made for equal division of the joint estate.
Reprinted from Sowetan Live, by Tina Hokwana – 2024-06-04
The Mthatha high court has ordered that the decision of a regional court magistrate ordering the husband to forfeit the benefits arising out of a marriage in community of property be set aside and substituted with an order for the division of the joint estate.
The parties were married in community of property in 1991 and in 2022, the wife was served with divorce papers.
The parties divorced and the decree of divorce was granted by the regional court magistrate in February 2023.
In his order, the regional magistrate granted a forfeiture order in favour of the wife in respect of the marital home and her pension interest.
This meant that the husband forfeited his benefits to the marital home and his 50% claim to the wife’s pension interest.
The husband was not satisfied with the judgment of the regional magistrate and appealed the decision.
It was argued on behalf of the husband that the regional magistrate misdirected himself when granting an order for forfeiture.
It was further argued that the wife requested forfeiture with the full knowledge that during the subsistence of the marriage, the couple had “been enjoying the pensions/provident funds of the appellant as he would usually lose jobs – now and again”.
The evidence that was placed before the regional magistrate by the wife was that the husband did not participate in the building of the joint estate.
Further, that the parties separated because the husband married another woman.
According to the wife, the husband did not contribute anything and failed to take care of the children.
The husband disputed some of the allegations and testified that he was the one who hired a TLB machine to level the site where they intended to build a house.
The house was built and they fenced the premises. When he lost his job, he used the proceeds of his payout to buy the material.
He also used his salary from a truck driving job to assist in the building of the house.
The appeal court highlighted that where forfeiture of benefits is sought, the onus is on the party seeking forfeiture to demonstrate that the other party will unduly benefit if forfeiture is not ordered.
The appeal court found that the husband contributed to the joint estate and the welfare of the children.
Further, that after the wife left the marital home, the husband’s family visited the wife’s family to inquire why she left the marital home.
According to the wife, she could not stay in a polygamous marriage and the husband subsequently married another woman without her permission.
Further, the appeal court mentioned that the regional magistrate identified the fact that the husband had children out of wedlock and the effect that his actions had on the wife’s health, as factors that put a strain on the marriage.
Those, according to the appeal court, are the factors that led to the breakdown of the marriage and do not constitute sufficient basis to warrant forfeiture of benefits.
The appeal court was therefore not satisfied that the husband committed a substantial misconduct.
It found that he materially contributed to the education of his children, took steps to save his marriage by making means to “bring back his wife to their marital home”.
As a result, the court ordered that the decision of the regional court magistrate ordering forfeiture of benefits be set aside and substituted with an order granting a division of the joint estate.
Cape Town family lawyer can help
SD Law is a firm of attorneys in Cape Town. We’ll help you negotiate a divorce that is fair, right for your family and secures your future. We will protect your interests and ensure a fair division of property and assets, with or without forfeiture of benefits, as appropriate, and we will do so with sensitivity and compassion. Call Simon now on +27 (0) 86 099 5146 or email sdippenaar@sdlaw.co.za.
Further reading:
- Forfeiture of pension benefit
- Divorce and the negotiation for pension benefits
- Divorce and pension sharing
- Divorced in community of property – forfeiture of benefits
SD Law
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