Husband not entitled to portion of wife's pension fund upon divorce, court rules

The high court in Johannesburg has ordered a man involved in divorce action with his wife to forfeit the benefits of her interest in her pension fund held with the Government Employees Pension Fund.

The couple were married in April 1985 in community of property and separated during August 2011. The husband instituted divorce action the same month.

By the time the trial proceeded in the high court in January this year, the parties had been separated for more than 11 years and the two children born of the marriage had reached adulthood.

In her counterclaim, the woman sought permanent maintenance of R7,000 per month and the man's forfeiture of the patrimonial benefits of the marriage in her favour. These are benefits that accrue to a party because of the marriage, such as pension funds.

In closing arguments, the woman sought an amendment to seek token maintenance of R10 per month, and her claim for forfeiture was reduced to a partial forfeiture, specifically of the couple’s immovable property in Bethlehem and her pension fund from August 2011 to date. The amendment was granted.

In the judgment passed on Tuesday, judge Brenda Neukircher granted the divorce decree.

While she ordered the remainder of the joint estate to be divided, she ordered the man to forfeit the benefits of her pension interest in her pension fund.

The husband was medically boarded in December 2000 and received a lump-sum pension payout of R170,000.

The husband used this to purchase a computer to design web pages. He paid off whatever debts the joint estate had and the remainder went into household living expenses. However, he found it very difficult to find work in Bethlehem.

He worked as a long-distance driver in the US between 2002 and 2009 for six-month periods and would send back money to his wife.

In 2009 he returned to South Africa where he found work in Alberton. This necessitated the expenses of a second residence, as his wife and children remained in Bethlehem.

Although she found him work closer to home, he decided to remain closer to his mother in Pretoria, who was very ill at the time. His mother died in July 2010.

He inherited two properties from his mother, a vacant stand in Clarens and the property in Pretoria North where he resides.

The man blamed his medical boarding on the stress caused by his wife's alleged constant physical and emotional assaults and the humiliation he suffered as a result. The woman denied this.

The woman had throughout the duration of the marriage worked for the police and to date continues to works for the service. During her 41 years of employment, she has accumulated a pension interest valued at about R2.9m. In 2011, the pension interest was valued at about R860,000.

The court dismissed her claim for maintenance after finding she had not adduced any proof that on probabilities she would require maintenance in future.

Regarding the Bethlehem house, the court refused forfeiture in her favour and said the property was purchased by both parties and the bond was registered in both their names. The court also said the man contributed towards the reduction of the bond.

Neukircher found the man would be unduly benefitted were an order for forfeiture of her pension benefits not ordered.

"It is in respect of the general reasons for the breakdown of the parties’ marriage that I find the wife has proven a claim for partial forfeiture. On her evidence, as a result of the frequent assaults, the fact that the man was an absent father and husband and played very little role in the family, the fact that he was financially selfish, all contributed to the breakdown of the marriage relationship."

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