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TINA HOKWANA |'Selfish' wife loses half of husband's pension claim

Judge slams 70-year old woman seeking divorce settlement for being self centred

Tina Hokwana Legal Practitioner
A woman's claim of her husband's pension has been dismissed in terms of section 9 of the Divorce Act 70 of 1979
A woman's claim of her husband's pension has been dismissed in terms of section 9 of the Divorce Act 70 of 1979
Image: 123RF

A wife and husband were married in community of property 23 years ago. The wife instituted divorce proceedings and sought a decree of divorce, division of the joint estate and an order that the husband should pay her R14,000 per month as spousal maintenance. She also asked the court to direct her husband to retain her as a beneficiary on his medical aid plan post retirement and pay for all ancillary medical costs not covered by the medical aid.

Finally, she sought an order that she is entitled to payment of 50% of her husband’s pension interest in his provident fund.

The husband in his plea raised a counterclaim where he sought an order for forfeiture of benefits in terms of Section 9 of the Divorce Act 70 of 1979.

Further, he pleaded that he would keep the wife on his medical aid until his date of retirement December 31. However, post retirement, he said, he would no longer be fully subsidised by his employer and as such will not be able to keep the wife on the medical aid plsn. In addition, the husband further pleaded that hecould not afford the R14,000 per month spousal maintenance.

The court therefore had to determine the following issues: the forfeiture of the husband’s pension funds by his wife, the retention of her as a beneficiary on medical aid post the husband’s retirement and payment of spousal maintenance of R14,000 per month.

On forfeiture, the husband argued that the wife would unduly benefit from his pension whereas he did not benefit from hers.

According to the husband, when his wife received her pension pay out (R273,986.20) in January 2014, she told him that the money was for her and her children and refused to contribute meaningfully to the joint estate. Instead she gave R20,000 to her son without discussing anything with him. He further mentioned that the wife never discussed with or informed him what she has done with the rest of her money.

The husband further testified that despite the parties having had an agreement that she would pay off the loan they had taken to extend the house when she retired, the wife refused to settle the loan and argued that the money was hers and her children’s.

Although she later on paid R30,000 towards the loan, this was only in 2020.

In her evidence, the wife counted a number of items including paving the yard, sofas, built-in cupboards, buying a shack, paying for the daughter’s wedding she claimed she used her pension money for, and thus contributed to the joint estate.

When confronted with the husband’s version during cross-examination, she conceded that most of these were paid for by both parties long before she got her pension pay out and some even years before. In conceding, she blamed her memory loss to diabetes.

After receiving her pension payout in 2014, the wife only settled the outstanding bond for an amount of R30,000 in March 2020, paid for the pivot door and the aluminium kitchen door, both amounted to R14,000 and R10,000 towards their car.

In determining the dispute, Judge Mthimunye was of the view that taking into consideration all the evidence before the court and the wife’s conduct and attitude in respect of her own pension, she had behaved in a “selfish and self-centred manner towards the husband.”

This was demonstrated not only by what she said to the husband at the time, but by how she then handled her own pension, to the utter exclusion of her husband. The court therefore found that her conduct rendered her guilty of substantial misconduct, which is a factor a court must consider in determining whether or not it will grant forfeiture.

Despite the finding that the wife had committed substantial misconduct, the court took into account that she contributed some money into the joint estate by paying off the house loan, the car and the pivot doors – R54,000 in total. For this reason, the court was persuaded that she should be granted a lesser percentage than what she had asked for.  In other words, the wife would partly forfeit a certain percentage of the pension benefits of the husband.  

In respect of the wife’s claim for spousal maintenance of R14,000 per month, she testified that after leaving the marital home three years ago, she went to live with her son (a medical practitioner) for five months and thereafter moved to rented accommodation for R6,200 per month. Her son gives her R10,00 a month for rent and upkeep. She is unemployed and although she is 70 years old, she does not receive a grant as she was told she was not eligible since her husband is employed.

Further, the court took into consideration that despite the husband currently being employed and earning in the region of R20,000 a month, he is retiring on December 31 at 65. The court found that the wife asking for 50% share of her husband’s  pension fund, spousal maintenance and medical aid that he cannot afford, goes against the principles of justice and fairness.

The court found that the husband would not be able to afford retaining the wife on his medical aid in the absence of a subsidy from his employer.

It was the court’s view that the wife should be in a position to maintain herself and pay for her own medical aid from the lump-sum that she stands to receive from the husband’s pension payout and the monies she invested in Absa and Capitec. The wife’s  claim for spousal maintenance and medical aid was therefore dismissed.

Order: decree of divorce granted and division of the joint estate. Wife entitled to payment of 25% of the husband’s pension interest in the provident fund calculated on the date of divorce.


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