Introduction
The High Court of North West, Mahikeng, heard an opposed divorce case between Mrs. B.P. (plaintiff) and Mr. L.P. (defendant), who were married in community of property on 11th December 2010. The marriage produced two children, aged 18 and 13 years old at the time of the judgment, both attending school in Grades 11 and 8, respectively, and still dependent on their parents.
During the course of their marriage, the plaintiff acquired a house registered in her name, with a bond repayment of R3,500 per month. The outstanding bond amount ranged between R140,000 and R150,000. The defendant never contributed to the bond repayments. The municipal market value of the house was R476,000. The couple also owned two motor vehicles before their separation: a Chevrolet Cruze, which was repossessed, and a Toyota Tazz, which the defendant took possession of. The estimated value of the Toyota Tazz was between R30,000 and R35,000, and it was paid up.
In 2015, the defendant moved out of the common home and began cohabiting with another woman. The plaintiff, who worked as a professional nurse in the North West Province, had to resign due to financial constraints. She received a net pension fund payout of R926,312.15, which she used to renovate the common house and maintain herself and the children. She did not share any of this money with the defendant. In 201[…], the plaintiff relocated to Krugersdorp, leaving her brother to take care of the house, fearing it might be vandalized. She found employment at Netcare Krugersdorp Hospital, earning a monthly salary of approximately R29,000. As of 28th February 2022, her pension fund benefits amounted to R207,1[…]1.88, which was expected to increase by the date of the judgment on 17 April 2024.
The defendant, a police officer with the South African Police Service (SAPS) for 33 years, held the rank of Warrant Officer at the time of the divorce. He earned a gross income of approximately R28,900 per month, with pension fund benefits exceeding R2,639,250, indicated as a resignation benefit. The defendant failed to pay maintenance for the children, only occasionally providing for their needs. He admitted to not maintaining them for more than nine years, acknowledging his responsibility to do so. Both parties agreed that the defendant should pay maintenance of R1,500 per month per child, totaling R3,000 per month.
The defendant sought to have the plaintiff forfeit his share of her pension fund benefits, as she had not paid him his half share of her R926,312.15 pension fund payout. He suggested that the house could be retained for their children, despite never contributing to the bond repayments. The water and rates bill for the common house amounted to R246,188.76 in May 2023, with the possibility of increasing by the date of the judgment. The plaintiff contended that the defendant should pay half of the water and rates bill in excess of R246,188.76.
Both parties agreed that their marriage had irretrievably broken down, with no possibility of reconciliation, despite their best efforts and consultations with family elders.
The Issues in dispute
The main point of contention in the case revolved around the entitlement of both parties to each other’s pension fund benefits and the defendant’s failure to pay maintenance for their children. The plaintiff testified that she used her pension fund payout of R926,312.15 to renovate the common home and maintain herself and the children, which the defendant did not dispute.
It is well-established that in a divorce, both parties are entitled to fifty percent (50%) of each other’s pension fund benefits as at the time of divorce. The defendant argued that he did not receive his share of the plaintiff’s pension fund payout amounting to R926,312.15, to which he was undoubtedly entitled. His half share would amount to R463,156.00 (excluding the fifteen cents).
The court referred to the case of N v N and Another (9417/2019) [2022] ZAGPJHC 714 (21 September 2022), which highlighted the provisions of the Divorce Act 70 of 1979, specifically sections 7(7) and 8. These sections state that the pension interest of a party shall be deemed part of their assets, and the court granting a divorce decree may order that any part of the pension interest due or assigned to the other party be paid by the fund when pension benefits accrue to the member.
The court also noted that in a marriage in community of property, both spouses benefit from the division of the joint estate. A forfeiture order should not be granted merely to balance the fact that one spouse contributed more to the joint estate than the other. In V v V, the wife’s claim for forfeiture was not granted, as she failed to prove misconduct, and the fact that the husband did not contribute to the pension fund or bond account did not mean he would be unduly enriched at the wife’s expense if the order was not granted. The division of the joint estate is a natural consequence of a marriage in community of property.
Furthermore, the court referred to the case of Wijker v Wijker 1993 (4) SA 720 (A), where it was held that conduct must be “so obvious and gross that it would be repugnant to justice to let the guilty spouse get away with the spoils of the marriage.” There was no evidence in the present case to suggest that the plaintiff’s conduct was so obvious and gross that allowing her to share in the community of property would be repugnant and unjust. The court in Wijker also pointed out that in a marriage in community of property, one spouse sharing in the other’s successful ventures is a consequence of the matrimonial property system, and the duty of support is entrenched in marriage regardless of the matrimonial property system.
The Order
The court determined that the defendant was entitled to half of the plaintiff’s current pension fund benefits. The defendant’s half share amounted to R103,565.00. To ensure a just, fair, and equitable outcome, the court ordered that the amount of R463,156.00 (the defendant’s half share of the plaintiff’s previous pension fund payout of R926,312.15) be set off against the plaintiff’s half share of the defendant’s pension fund benefits. The defendant’s pension fund benefits exceeded R2,639,250.00, with the plaintiff’s half share amounting to R1,319,625.00. The set-off of R463,156.00 against the plaintiff’s half share of the defendant’s pension fund benefits was deemed logical mathematics by the court.
The court also considered the defendant’s failure to maintain his children for over nine years, which could not be ignored. The plaintiff testified that she maintained the children alone, which the defendant conceded, although he claimed to have occasionally provided for their needs. The court found that the defendant would unduly benefit if his failure to pay maintenance for nine years was disregarded. The unpaid maintenance, calculated at R3,000.00 per month for nine years, amounted to R324,000.00. To avoid creating a conundrum, the court deemed it just, fair, and equitable to allow the plaintiff her half share of the defendant’s pension fund benefits, which exceeded R1,319,625.00, while setting off the amount of R463,156.00 (the defendant’s half share of the plaintiff’s previous pension fund payout). This decision ensured that both parties were entitled to a half share of each other’s pension fund benefits.
Furthermore, the court ordered the defendant to pay half of the water and rates bill of the Mahikeng Local Municipality as at the date of the divorce. The court also ruled that the house should remain the sole property of the plaintiff. Additionally, the defendant was ordered to pay maintenance for the children in the amount of R1,500.00 per month per child, totaling R3,000.00 per month.
Consequently, the court made the following order:
A decree of divorce was granted.
The joint estate was divided, with the plaintiff retaining the house as her exclusive property and the defendant retaining the Toyota Tazz as his exclusive property. Each party was to retain the movable assets in their possession.
The defendant was ordered to pay half of the water and rates bill of the Mahikeng Local Municipality for the property as at the date of the order, being 17 April 2024.
Joint parental rights and responsibilities were awarded to both parties, with the primary care and residence of both children resting with the plaintiff, subject to the defendant’s right of reasonable access and contact.
The defendant was ordered to pay maintenance of R1,500.00 per month per child, totaling R3,000.00 per month.
The defendant was ordered to pay R324,000.00 to the plaintiff as arrear maintenance for the two children.
Both parties were entitled to half of each other’s pension fund benefits as at the date of the order, being 17 April 2024.
The plaintiff’s pension fund was identified as the Netcare 1999 Provident Fund, and the defendant’s pension fund was identified as the Government Employees Pension Fund (GEPF).
The plaintiff was ordered to pay R463,156.00 to the defendant as his half share of her previous pension fund benefit of R926,312.15.
The defendant was liable for a 50% contribution towards both children’s medical, orthodontic, prescribed pharmaceuticals, and similar expenses, and was required to retain both children on his medical aid scheme.
The defendant was liable for a 50% contribution towards both children’s tuition fees, book fees, uniform, transport costs, and costs for extra-mural activities.
Questions and Answers
Q: What is the law of forfeiture in the context of divorce in South Africa? A: In South African divorce law, forfeiture refers to a court order that deprives a guilty spouse of the patrimonial benefits of the marriage due to their misconduct.
Q: What factors does the court consider when deciding on a forfeiture order? A: The court considers factors such as the duration of the marriage, the circumstances of the misconduct, and the overall fairness of the proposed division of assets.
Q: Did either party in this case argue for a forfeiture order based on the other’s misconduct? A: No, neither the plaintiff nor the defendant argued for a forfeiture order based on the other’s misconduct.
Q: What is the standard of misconduct required for a forfeiture order to be granted? A: The misconduct must be “so obvious and gross that it would be repugnant to justice to let the guilty spouse get away with the spoils of the marriage,” as held in Wijker v Wijker 1993 (4) SA 720 (A).
Q: Did the court find any evidence of misconduct that would warrant a forfeiture order in this case? A: No, the court did not find any evidence of misconduct by either party that would warrant a forfeiture order.
Q: How does the matrimonial property system affect the application of the law of forfeiture? A: In a marriage in community of property, the law of forfeiture may be applied to prevent an unfair division of assets due to the misconduct of one spouse. However, the court must consider that sharing in the other spouse’s successful ventures is a natural consequence of this matrimonial property system.
Q: Can a forfeiture order be granted solely based on the fact that one spouse contributed more to the joint estate than the other? A: No, a forfeiture order may not be granted simply to balance the fact that one spouse made a greater contribution to the joint estate than the other.
Q: Did the court consider the defendant’s failure to pay maintenance as a ground for forfeiture? A: No, the court did not consider the defendant’s failure to pay maintenance as a ground for forfeiture. Instead, it ordered the defendant to pay arrear maintenance to the plaintiff.
Q: Would the law of forfeiture have been applicable if the plaintiff had proven misconduct by the defendant? A: If the plaintiff had proven misconduct by the defendant that was so obvious and gross that it would be repugnant to justice to let him benefit from the division of the joint estate, the court might have considered applying the law of forfeiture. However, this was not the case in the present matter.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline. A blog, managed by SplashLaw, for more information on Family Law read more here.
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