Infidelity leads to forfeiture of pension fund in Limpopo divorce case

A woman’s infidelity came at a high cost for her, after the Limpopo High Court, sitting in Polokwane, confirmed an earlier order that she forfeit her half of her husband’s Government Employees Pension Fund (GEPF) in a divorce action.

The woman turned to court to appeal an earlier ruling by the lower court which ordered the forfeiture. But Judge Mariska Naude-Odendaal found that the woman (the appellant) had no grounds to stand on and she turned down the appeal.

The appellant submitted that the lower court misdirected itself in law, in respect of making a finding that the infidelity is a ground for forfeiture. She argued that there are many case law findings which state that a spouse who is asking for a forfeiture order must demonstrate financial misconduct committed by the offending party, to sustain forfeiture.

The wife submitted that in the present case, there is no financial misconduct that was committed by her for the court to grant forfeiture. Further, there is no evidence that she ever squandered assets of the joint estate. According to her, the magistrate erred in finding that she will squander 50% of the pension interest with her alleged boyfriend. She denied that she still had a boyfriend, while the magistrate accepted the husband’s claim that she had.

She said that during their marriage, she contributed to their joint estate. She said that the court should have considered that her husband had abused her during their marriage and that this fact weighed heavier than her misconduct for having two children out of wedlock.

She pointed out that infidelity is not a ground for forfeiture; instructively, bearing children out of wedlock is a by-product of infidelity, and hence on its own it cannot be a ground for forfeiture.

The parties got married to each other in community of property when the wife was 30 and her husband 57. They had one child together and they were married for eight years, although they only lived together for two years.

The wife said she left the common household after her husband threatened to shoot her.

The court noted that the wife had extra marital affairs and two children were born out of wedlock. She claimed maintenance from the husband for the children born out of wedlock, insisting that the children were his.

Only after the husband insisted that DNA tests be done, was it confirmed that the two children born out of wedlock were not his. The court also noted that the husband threatened to shoot her after he had discovered that she had numerous other relationships.

“The appellant even lied under oath when she went to apply for maintenance for the two children born out of wedlock at the Maintenance Court and portrayed that they were the respondent's children whilst they were not,” the judge said.

It was also noted that the wife never worked and whatever contributions were made to the common household was with the husband’s money.

The fact that the wife often disappeared with her husband’s bank card while with other men and using his money to her advantage, as well as her extra marital affairs and the children born out of wedlock which she falsely made the husband believe were his children until a DNA test was done, amounts to substantial misconduct on her part, Judge Naude-Odendaal said in turning down the appeal.

zelda.venter@inl.co.za