Infidelity Costs Wife Half of Husband’s R2.3 Million Pension in Divorce

Infidelity can have serious financial consequences in divorce proceedings, particularly where the parties are married in community of property. In a recent judgment delivered by the Gauteng High Court (Johannesburg), a wife lost her claim to half of her husband’s R2.3 million pension fund benefit after the court found that her conduct amounted to substantial misconduct.

Background: Divorce and Pension Forfeiture Dispute

According to reports in the Cape Times, the parties were married in community of property in January 2011. The marriage ultimately broke down after the wife had an extramarital affair, which resulted in a pregnancy with another partner. The husband subsequently evicted her from the marital home.

In August 2024, the wife issued divorce summons seeking an equal division of the joint estate, including the husband’s pension interest. While both parties agreed to the divorce and to divide the joint estate equally, the husband applied for a forfeiture order in respect of his pension fund, citing substantial misconduct on the wife’s part.

The Legal Issue Before the Court

The sole issue before the court was whether the wife should be entitled to half of the pension benefit, valued at approximately R2.3 million, or whether she should forfeit her share in terms of section 9 of the Divorce Act 70 of 1979.

The husband argued that allowing the wife to share in his pension would result in her being unduly benefited, given the circumstances that led to the breakdown of the marriage.

Court’s Findings on Contribution and Misconduct

Judge Noluntu Bam acknowledged that the husband had been the primary financial provider for the family. However, the court emphasised that financial contribution is not the sole measure of contribution in a marriage.

The judge recognized that the wife had stayed at home and contributed to the marriage by managing the household and caring for the family, noting:

“There is a whole system that runs in the background to make most family homes stable.”

Despite this recognition, the court found that the cause of the marital breakdown was the wife’s extramarital relationship.

Facebook Post Played a Crucial Role

The court placed particular weight on the wife’s conduct after the affair. Judge Bam found that the wife not only entered into a relationship with a third party but conceived a child with that partner and then publicly announced and celebrated the pregnancy on Facebook, including posting about her baby shower.

The judge held that this conduct amounted to substantial misconduct, stating that it would have humiliated the husband and significantly contributed to the breakdown of the marriage.

Forfeiture of Pension Benefits Ordered

The court ultimately granted the husband’s application and ordered that the wife forfeit her claim to half of his pension fund interest. This meant that although the joint estate was divided equally, the pension benefit was excluded from the wife’s entitlement.

Key Takeaways for Divorce Matters

This judgment highlights several important principles in South African divorce law:

• Infidelity can have serious financial consequences, particularly where it constitutes substantial misconduct.

• Courts will consider non-financial contributions, such as homemaking and childcare.

• Public conduct, including social media activity, can be relevant evidence in divorce proceedings.

• Pension interests are not automatically excluded from forfeiture claims, even in marriages in community of property.

Conclusion

While South African courts do not punish infidelity as such, this case illustrates that misconduct which causes the breakdown of a marriage may justify a forfeiture order where one party would otherwise be unduly benefited.

Each case turns on its own facts, and outcomes depend on the nature of the misconduct, the duration of the marriage, and the contributions of each spouse.

Contact our law firm for professional advice on divorce, forfeiture of benefits, or how marital misconduct may affect your financial rights.