A woman is unhappy with the fact that her husband is receiving a share of her pension benefits as well as their communal home when he left her after they had been married for less than three years.
She has since turned to the court for an order that he had to forfeit everything due to his conduct. The couple were 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.
The husband paid lobola before they entered into the civil marriage. The wife initially turned to the South High Court in Johannesburg 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.
A judge earlier 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, for which she said she worked very hard. She returned to the court to appeal the ruling and to ask that he did not receive a cent. She said the court should consider the short duration of their marriage before he had left.
Judge Leicester Adams, in agreeing with the trial 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.
He pointed out that the wife testified that her now former husband twice paid lobola for her, first in 2007 and again in 2011. She also testified that the parties had a traditional wedding ceremony in 2014 and that between 2014 and 2015 – which is the period immediately preceding the civil wedding – they lived together as husband and wife.
“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.
