Legal Talk

Author: Fawzia Khan
Date: 2014-08-08

Being abusive towards one's spouse, not maintaining the matrimonial home adequately, or at all, conducting extra marital affairs whilst married are reasons enough for divorce.

But are those very reasons sufficient to claim a forfeiture of the benefits of an in community of property marriage? Section 9 of the Divorce Act 70 of 1979 says that "the Court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part, if the Court, having regard to the duration of the marriage, the circumstances which gave rise to the breakdown thereof and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefited."

A woman, who was married in community of property, instituted divorce proceedings against her husband. She claimed a forfeiture of benefits against her husband. At the time of the divorce she was a registered nurse and a member of the Government Employees Pension Fund (GEPF).

She cited the reasons for the breakdown of the marriage to be that he assaulted her on numerous occasions; they did not lived as man and wife for approximately 3 months; the husband failed or neglected to make any contribution to the joint estate over the past 10 years and was unemployed; the wife maintained the husband financially; the husband verbally abused her and threatened her life; the husband engaged in numerous extra-marital affairs and entertained the other women in the common home in the absence of the wife.

The court also heard evidence that the husband was convicted for assaulting his wife and was sentenced to 15 months imprisonment of which he served 4 months. The husband denied that he conducted himself in that manner. He stated that he married his wife after being misled into believing that he was the biological father of the child that his wife was then carrying.

He later discovered that his wife was receiving maintenance in secret from the child's biological father and that the marriage took severe strain thereafter. He counter - claimed for an order that the joint estate be divided equally and asked the court to award him half of the wife's pension interest.

According to the Divorce Act 1979, a judge is given a discretion as to whether or not to allow such an order to be made, in such forfeiture of benefits claims. Whilst not condoning the act of domestic violence, the court found that both parties contributed towards the breakdown of the marriage.

The Court found that the wife had over the past 25 year period built up a pension interest, whilst the husband built up no pension interest. It ordered that the husband should not be entitled to any part of his wife's pension. The Court accordingly dismissed the wife's claim for forfeiture of benefits as well as the husband's claim for fifty percent of his wife's pension interest.

Know your rights! The Law Desk of Fawzia Khan & Associates. We Know! We Care! We Deliver! Email fawzia@thelawdesk.co.za or call 031-5025670 for legal assistance.

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