TINA HOKWANA | Abusive husband forfeits claim to wife’s R7m pension fund interest

A husband who was married in community of property for close to three decades has lost out on a claim of a R7m of his wife’s pension fund interest.

The couple were married in 1983 with four children born of the marriage, all of whom are now over 18 years old.

The parties had not been living together as husband and wife since 2010, when the wife instituted divorce proceedings, and they both agreed that the marriage relationship had irretrievably broken down a long time.

The only dispute between the parties related to the distribution of the assets in the joint estate, which included the wife’s interest in a pension fund to the value of more than R7m.

The wife argued that the husband should be ordered to forfeit his share of her pension interest and that the balance of the assets in the joint estate, two immovable properties in Soweto, should be divided between them equally.

The wife claimed a forfeiture of the benefits in respect to her pension fund interest, primarily on the basis that the husband, during their 27 years of their marriage, had grossly misconducted himself, in addition to making very little contribution to the joint estate.

She therefore submitted that, if forfeiture was not ordered, the husband would unfairly benefit.

The husband in turn argued that there should be a division of the joint estate, including the wife’s pension interest in her pension fund. He denied that he committed misconduct during the marriage or that he made little to no contribution to the joint estate.

In her evidence, the wife painted a picture of her husband as a bad father and an even worse husband, who treated her “with little respect and his children with absolute disdain”. She testified that even though he was employed full time up to 2002, he made very little to no contribution to the joint estate.

As an ordained pastor, he spent most, if not all his money on his church, she said, adding that she was left with the responsibility of paying for food and other household necessities, including the children’s school fees and their spending.

This was confirmed by the parties’ children during their evidence, which was uncontested and left unchallenged.

In addition, the wife gave evidence that when the husband was retrenched from his employment during 2002, he used a substantial portion of his retrenchment package (approximately R118, 000) to settle the amount owing on the bond over the property in Meadowlands (about R43,000).

Other than that, the evidence suggested that he made very little contribution to the joint estate.

The wife further testified that the husband was not only financially abusive but also verbally, psychologically and emotionally abusive.

As confirmed by the evidence of their children, he would constantly accuse her of sleeping with other men. In 2010, because of the stress and abuse, she suffered a heart attack and received no support from the husband during her subsequent hospitalisation.

It was after her hospitalisation that she finally decided to leave her husband and the matrimonial home with her kids. Later that year, she also instituted divorce proceedings.

It was the wife’s evidence that the financial abuse then intensified as he refused to maintain and support their last-born child, who was a minor then and still at school.

She also indicated during the trial that she would be prepared to forego any entitlement to any claims in respect of the immovable properties in Zola and Meadowlands in Soweto.

The court indicated that the evidence painted “a picture of a husband and a father who misconducted himself in the unkindest manner possible towards his family, who ended up living in a cold and loveless household”.

In making its determination, the court considered that both parties owned no properties of significant value at the start of their marriage and together built up for themselves and their children an asset base, consisting of the matrimonial home, another property in Zola and the wife’s pension interest.

The value of their properties at present was approximately R1.5m and that meant that their estate had increased by a total sum of about R8.5m. The husband would therefore stand to benefit by an amount equivalent to half of that sum on the dissolution of the marriage.

The court was of the view that due to the husband’s substantial misconduct during the marriage and his lack of any meaningful contribution to the joint estate, he would unfairly benefit if forfeiture was not granted.

Accordingly, he could not be allowed to unduly benefit from the marriage in community of property, and partial forfeiture was therefore ordered in favour of the wife in respect of her pension interest.

The divorce decree was granted. 

A forfeiture order was also granted in favour of the wife against the husband in respect of her pension interest and the husband shall forfeit in full his entitlement to share in the wife’s pension interest in the GEPF.

The court also said the husband would retain as his sole and exclusive property, the immovable property in Zola and Meadowlands.