Cape Town - After three attempts, a woman has finally been successful in the Supreme Court of Appeal (SCA) to have her ex-husband forfeit 50% of her pension benefits because he had been cheating and had children outside of the marriage.
They were married in community of property and profit and loss, from October 1, 1985.
But on October 17, 2016 he filed for divorce and a financial settlement, against his now ex-wife.
On November 19, 2020, the high court dismissed the wife’s counter-claim for a partial forfeiture order in respect of her pension benefits. Instead, it ordered the husband was entitled to 50% of her pension fund.
Aggrieved, the wife on January 27, 2021, sought leave to appeal. In March that year the SCA granted her leave to appeal to the High Court in Limpopo.
Her appeal to the full court was also unsuccessful. She then approached the SCA again.
The crux of the matter before the SCA was whether her husband would unduly benefit if the order for partial forfeiture of benefits was not granted.
She argued that the breakdown of the marriage was caused by his prolonged extra-marital affair with an employee of the parties’ financial services business. The affair was a turning point in her life, as the affair was conducted in the public, she said.
She argued that she also found out that her husband had six other children outside the marriage, the employee’s child being one of them.
They tried counselling but it bore no fruit. The ex-wife also testified that her husband had abandoned his financial obligations towards her and their children, leaving her with the burden.
He instead directed his attention to “building an empire with his new partner”.
The ex-husband denied having an extramarital affair, arguing they were only friends. He also denied having business interests with another woman. Only under cross-examination, when he was confronted with documentary evidence, did he concede to having established businesses with their former employee.
Judge Yvonne Thokozile Mbatha found: “There can be no question that the applicant satisfied the requirements ... that the respondent would unduly benefit if the order for partial forfeiture is not granted.
“The applicant made direct financial contributions to the joint estate, as opposed to the respondent who used almost all his financial resources for the benefit of (the other woman).”
“The patrimonial benefits of the parties’ marriage in community of property in respect of the defendant’s pension benefits and interest held in the Government Employee Pension Fund are forfeited by the plaintiff in favour of the defendant.”
Cape Times