A husband who had to forfeit half of his wife’s pension after a court found that he had married a second time without the first wife’s knowledge or consent, will get a share of her pension after successfully appealing the earlier order.
The wife earlier obtained an order for her now divorced husband to forfeit his share of her pension, arguing that he was guilty of misconduct by taking a second wife. Although her husband had instituted the divorce proceedings, the wife made it clear that she could not stay in a polygamous marriage.
The Regional Court in the Eastern Cape, sitting in Mthatha, agreed with her. However, on appeal, the high court found that all in all the husband had not committed substantial misconduct, and that he had materially contributed to the education of his children.
The couple were married to each other in community of property since 1991 up to their divorce last year. In granting the divorce order, the magistrate also ordered that there was no need for the wife to share her pension with her husband.
But, on appeal, it was argued on behalf of the husband that the magistrate misdirected himself in relation to the forfeiture of benefits arising out of the marriage. It was argued that the couple, while they were still married to each other, shared in the husband’s pension benefits from time to time as he would “usually lose jobs and find new ones.”
The wife earlier told the magistrate that she was not opposed to the divorce action instituted by her husband, but she regarded it to be unfair that she had to share her pension with him when he was the one who had failed to honour his marriage to her.
She further stated that the husband during their marriage did not participate in the building of their joint estate.
According to the wife, the husband did not contribute anything and had failed to take care of the children.
The husband disputed this and said he used his money to help build their matrimonial home and always made sure that his children were financially taken care of.
Acting Judge MN Hinana said for a court to grant an order for forfeiture of marital benefits, there must be cogent evidence to conclude that there was substantial misconduct.
In citing a judgment in a similar matter, the judge said joint ownership of another party's property was a right which each of the spouses acquired on concluding a marriage in community of property.
“Unless the parties (either before or during the marriage) make precisely equal contributions, the one that contributed less shall on dissolution of the marriage be benefited above the other if forfeiture is not ordered.
“This is the inevitable consequence of the parties' matrimonial property regime,” the judge said. He added that the legislature did not give the greater contributor the opportunity to complain about this. “He can only complain if the benefit was undue.”
“ Unless it is proved (and the burden of proof rests on the party who seeks the forfeiture order)what the nature and extent of the benefit was, the court cannot decide if the benefit was undue or not. Only if the nature and ambit of the benefit is proved is it necessary to look at the factors which may be brought into consideration in deciding on the inequity thereof.”
The judge pointed out that misconduct and gross unreasonableness did not always go hand in hand.
“When the court is considering whether any party to a marriage would be unduly benefited, the factors enlisted in the Divorce Act should be taken into account. These are the duration of the marriage, the circumstances that gave rise to the breakdown of the marriage and any substantial misconduct on the part of either of the parties and that undue benefit may accrue to the one party in relation to the other, if an order of forfeiture is not granted.
“ In my view, the circumstances of this case do not justify forfeiture by the appellant and therefore, the appeal must succeed,” the judge said.
Pretoria News