A WOMAN’S CLAIM OF HER HUSBAND’S PENSION HAS BEEN DISMISSED IN TERMS OF SECTION 9 OF THE DEVORCE ACT 70 OF 1979

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. (Just loosely means that the Court may grant, in certain
instances and on the grounds of certain specific requirements, allow one party to forfeit his/ her benefits
(wholly or in part, in favor of the other). The Court however does not make these decisions lightly and will
consider each Divorce on its own merits.

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 subsidized by his employer and as such
will not be able to keep the wife on the medical aid plan. In addition, the husband further pleaded that he
could 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 aluminum 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-centered 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.

When he received his pension fund payout some years ago, he also did not share a penny with his wife or children.

The wife, who works for a government agency, turned to the Gauteng High Court, Pretoria, to obtain a divorce. As they were married in community of property, she also asked the court not to divide the assets – all hers – between them. The wife asked the court to order the husband forfeit his half of the assets, due to “substantial misconduct”.

This was because he used his R270 000 pension money when he was earlier fired from his job for himself and not towards the joint estate.

It was argued that if he did receive 50% of their joint estate, he would “unduly benefit” in relation to the wife.

While both parties levelled accusations of infidelity against each other over the years, Acting Judge IP Ngobese could not find any evidence to substantiate these allegations.

These alleged extra-marital affairs did surface during the court proceedings, but the wife did not rely on that when she asked that her husband forfeit his portion of the estate.

She said she bought their house, the car and worked hard towards her pension fund. The husband, on the other hand, hardly contributed anything. When he eventually did receive his pension, he did not share it.

The husband said his wife had a lucrative job in government, but he was a pastor who relied on hand-outs from members of his flock, which he said amounted to between R200 and R500 a month.

The pair got married in 2006, and in 2012 the wife got a government posting in Germany. Her husband refused to relocate and lived in their home, which she paid for in South Africa. While she was in Germany his only contribution was paying for the electricity in the house. When she returned from her posting in 2016, she was told that he had fathered a child with another woman – a claim he had denied.

He said she had two affairs and that one of her lovers moved in with her when he moved out of the house in 2017.

The judge commented that while the wife was an impressive witness, the same could not be said of the husband, who was evasive and tended to exaggerate.

Judge Ngobese, in referring to the adultery allegations, cited a previous judgment in which a judge said that adultery and desertion may in certain instances be the symptoms, and not the cause, of a marriage breakdown and that the conduct of the parties could not be considered to be blameworthy.

But the judge said in this case the wife was not asking that the husband lose his portion because of his affair, but simply because he did not contribute towards the household, thus he should not unduly benefit when they divorced.

In this case, the judge said, the husband’s misconduct resulted in him forfeiting his half of his wife’s government pension fund, as well as their matrimonial home and the car.

Where the available means of support is not adequate to maintain both people according to their former scale of living, each person has to scale down his or her budget, a judge said during divorce proceedings.

In this case, the wife, who had hardly worked before and had few qualifications, told a Northern Cape High Court judge she had applied for at least 45 jobs, but had not been invited to a single interview.

The judge said by no fault of her own it was unlikely, given her age and working experience, she would ever find work. He ordered her husband had to pay spousal maintenance to her for long as she lived or until she marries again.

The judge referred to a similar case in which a judge had said that for most, divorce brought a measure of hardship or at least some degree of deprivation. The judge said: “To say that two can live as cheaply as one is not true. The fact of the matter is that two living together can live more cheaply than two living apart.”

It was said in the judgment the problem of “indivisible household expenses” was real. “The fact that each former spouse now has to pay for things formerly enjoyed in common places a heavier burden on the finances than was formerly the case. It is therefore clear that in most cases both parties will have to reduce their standard of living to some extent,” the judge said.

In this case, the couple were married out of community of property with the accrual system for nearly two decades. It was agreed upon divorce the wife would receive about R1.5 million from her husband’s pension fund, but the woman said this would not be enough to make ends meet each month.

While she had worked for a short period during their marriage, it had been agreed she would stay home and look after their children, who were young at the time. The woman also said she and her husband had agreed the cost of buying new work clothes was simply not worth it, compared to the salary she earned.

The wife said throughout the marriage she had dedicated herself to housekeeping, home-making and cooking, most of the time without domestic assistance. Thus, she was entitled to spousal maintenance to make up the shortfall she would face in her monthly expenses.

She said she was not unwilling to work, but applying for more than 45 jobs and not hearing anything back from the potential employers gave her little hope of a career.

Judge JW Eksteen said the divorce legislation did provide for spousal maintenance in certain cases. He said the court could make an order for the payment of maintenance by one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event occurs first.

“Although the plaintiff (the woman) said that she would like to be employed and portrayed a positive self-image, optimistic of obtaining some form of employment, I am satisfied that her prospects of securing a rewarding position are very slim indeed,” Judge Eksteen said.

The judge added the woman had limited working experience and was no longer young. She had no post-school qualification nor formal training in any field of employment.

“She has made numerous applications, without success, and the conclusion to which one is ineluctably driven is that she will be at a significant disadvantage against an oversupply of younger applicants in the labour market.”

The judge said this was not to say she was unemployable. “She is a presentable, intelligent, healthy, well-spoken woman and portrays a positive self-image. Her own evidence suggests that she may be able to find some form of employment in the future. But, realistically, the expectation is that it would yield a modest income. I have accordingly come to the conclusion that she will require maintenance until her death or remarriage,” he said.

He pointed out her husband had had the same steady job for the past 25 years and that, in addition to paying maintenance to their child, who was still living at home, he had to pay his wife R8 000 a month of spousal maintenance.

He was dismissed more than 10 years ago after it was found that he was dishonest. Matras, represented by trade union Nehawu, has been unsuccessfully fighting his dismissal all these years.

He was dealt yet another blow a few days ago, when the Labour Court turned down his leave to appeal against an earlier finding in which he lost his case to set aside the finding of an arbitrator that his dismissal was fair.

In the course of his legal battles over the years, it was never found that the sick note that he had obtained was fraudulent or that he was never ill. However, it was found that the sick note was used for dishonest reasons.

In his bid to overturn his dismissal, it was argued on behalf of Matras that since he had a sick note, it was his business what he did while he was legally booked off from work.

It turned out that days before he was booked off, Matras did mention to his supervisor that one of his family members was getting married in George.

The sick note he obtained from a doctor indicated that he felt under the weather, and Matras was booked off for a few days in June 2012.

He told his employer that he would not be able to attend his shift due to illness. Shortly afterwards his supervisor sent him a message in which she expressed her misgiving that he may have booked off to attend the wedding which he had earlier mentioned.

When he returned to work, he faced a disciplinary hearing and was fired.

He took the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA), which ruled his dismissal to be fair. Unhappy with the finding, Matras turned to the Labour Court to review and set side the CCMA’s finding. The matter was readmitted to the CCMA and a new hearing was held before a different arbitrator.

The new arbitrator also found his dismissal to be both substantively and procedurally fair.

Still aggrieved by this finding, the Labour Court was yet again asked to review this finding, which application was turned down. In the latest development, leave to appeal against the above finding was also refused.

Matras’s argument was that the fact that he had a legal sick note from a doctor was ignored by all.

He said his former employer never elected to call the doctor to dispute the sick note, thus it could not be disputed that he was under the weather at the time. According to Matras, things should have ended the minute he had handed in his sick note and legally gone on leave. It was argued that it did not matter whether he chose to remain home to get better or travelled to the wedding.

He maintained that he was sick and definitely not dishonest.

During his legal battles against his dismissal, it was found that the arbitrator did weigh up all the evidence – that of Matras and the “hearsay” submission of his supervisor and other witnesses.

The arbitrator concluded that Matras was dishonest and that he had wanted to go to the wedding, and thus obtained the sick note.

In refusing leave to appeal, the court found that another court would not come to a different finding than that of the arbitrator – namely that the sick note was used for dishonest reasons.