Wife loses claim to husband's R2.3 million pension fund after affair with his friend and a child outside marriage
Court denies wife pension share due to extramarital affair and child outside marriage.
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The North Gauteng High in Pretoria has granted a decree of divorce while ordering a wife to forfeit any claim to her husband’s pension benefits after finding that her conduct during the marriage amounted to substantial misconduct.
The high court ruled that the wife would be unduly benefited if she were allowed to share in the husband's pension fund, valued at approximately R2.3 million.
The couple, who were married in community of property in January 2011, had lived apart since 2020. Although both parties acknowledged that their marriage had irretrievably broken down and agreed to an equal division of the joint estate, the husband sought to exclude his pension from the settlement, citing his wife’s extramarital affair and the birth of a child with another man.
The court heard that the wife, who was unemployed throughout the marriage, became romantically involved with one of the husband’s friends while they were still living together. In an emotional response to the shocking betrayal, he chased her away from their home.
A few years later, he saw a post of a baby shower on Facebook, prompting the realisation that his wife had given birth to a third child in December 2023. Notably, the wife chose not to testify, leading the court to rely heavily on the husband's account of events. The court papers did not mention who was the father of the child.
During cross examination, the husband was questioned about a property belonging to the joint estate which he sold for R65,000 in December 2020, and the title deed recorded that he was unmarried. He explained that he sold the property to his sister to cover medical expenses after falling seriously ill, dismissing allegations that he misrepresented his marital status to exclude the wife. In any event, he added, the wife was in another relationship at that time.
Judge Noluntu Nelisa Bam accepted his explanation and said it was clear that the wife no longer cared as she was minding her own business with another man.
He was further asked about an alleged extra marital relationship with a woman named L and he denied it saying the woman was someone he knew from their area. He further denied having fathered a child or children with L.
Upon weighing the evidence, judge Bam held the marriage broke down because of the wife's involvement in an extra-marital relationship with the husband's friend coupled with the fact that few years after leaving the marital home, she gave birth to a third child with another man and publicly celebrated the birth on social media.
Judge Bam said her behavior constituted misconduct that effectively destroyed any remaining prospects of reconciliation.
"What I regard as misconduct is not only the plaintiff's (wife) involvement with a third party but the act of procreating with a third party and then publicising the birth by posting messages of her baby shower on Facebook. That must have humiliated the defendant (husband).
"The combination of all these events amounts to misconduct. On this basis, the plaintiff will be unduly benefitted were the court not to make the forfeiture order of the defendant’s pension," said the judge.
In weighing the factors set out in section 9 of the Divorce Act, the judge concluded that allowing the wife to benefit from the husband’s pension would amount to an undue advantage, particularly given that she was now in another relationship from which she could derive support.
The court granted a decree of divorce, ordered an equal division of the joint estate excluding the husband’s pension, and awarded permanent residence of the minor children to the mother.
Meanwhile, parental responsibilities and rights of care were awarded jointly, while the father was granted structured contact rights and ordered to pay R2,000 per child per month in maintenance.
Despite the husband’s success in the forfeiture claim, the court ruled that each party should pay their own legal costs, citing the interests of justice.
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