A woman – unhappy with the fact that her husband was receiving a share of her pension benefits as well as their communal home when he left her – has turned to the court for an order that he had to forfeit everything due to his conduct.

The couple was married in terms of a civil ceremony and in community of property for nearly three years before the marriage ended in divorce after the husband left.

But prior to this, they were in a customary union for about five years.

A Pretoria News report says the husband paid lobola before they entered into the civil marriage. The wife initially turned to Vereeniging Regional Court for an order that he had to forfeit all of her pension as well as their home for which she paid when he left.

She argued that he could not benefit financially while he was the one who had left her.

Magistrate SP Morwane ordered that the husband was at fault and that he could not unduly benefit simply because they were married in community of property. It was ordered that as punishment for his conduct, he had to forfeit 20% of his half of everything.

But the wife was unhappy about the fact that he would still receive 30% of his 50% share in the house and of her pension, says the Pretoria News report.

She turned to the Gauteng High Court (Johannesburg) to appeal the ruling, saying the court should consider the short duration of their marriage.

Judge Leicester Adams, in agreeing with the Regional Court, said one should not only take into account the period from July 2015 during which the parties were in a civil marriage, but also considered that prior to the civil marriage the parties were married in terms of customary law.

He said the entire time frame – the customary marriage and the civil marriage – did not constitute a short marriage justifying a total forfeiture of patrimonial benefits.

‘The parties were clearly married in terms of customary law well before the civil marriage in July 2015. This is by no means a short marriage,’ he said in turning down the wife’s appeal.

He concluded it was not unfair for the husband to receive some of the marital financial benefits.

Full Pretoria News report

Judgment