Pretoria - In another case of whether a cheating spouse should be punished in the event of a divorce by forfeiting marital benefits, a judge refused to penalise a woman who was unfaithful before the couple (unsuccessfully) reconciled.
Her husband was upset by “naughty” pictures he found in their home of his wife and a man she had an affair with during their unhappy marriage. He handed the pictures to court as proof of her unfaithfulness, but the woman complained that he illegally obtained the drive containing the pictures. She said this infringed on her privacy.
However, Judge Vivian Tlhapi allowed the pictures, some depicting the woman in her underwear, to be handed up to court.
The couple finally divorced last year after a 10-year marriage.
They were married out of community of property, by ante-nuptial contract which is subject to the accrual system. The woman turned to court as she believed she was entitled to half of their joint estate, but the husband said she should forfeit her right to a share in the estate, as she was guilty of a substantial misconduct; namely adultery.
The couple had a troubled relationship and the fact that the woman had a disabled daughter placed further strain on the marriage.
The woman moved out of the marital house between 2005 and 2006, but she moved back when they decided to try and save the marriage. She, however, obtained a protection order against her husband the following year and he was “banished from the common bedroom”.
The husband instituted divorce proceedings against his wife in 2008 and she did not defend this action. It was during this time that she became romantically involved with her boss and the relationship lasted several months.
According to the woman, her husband knew about the relationship and she told him when it ended.
In 2010 she moved in with her husband again and he dropped the divorce proceedings. During this time he discovered the “naughty pictures” of her and another man on a flash drive. The woman said the pictures were taken while she and her husband were separated.
The man yet again instituted divorce proceedings, leading up to their divorce last year.
Judge Tlhapi said it did not really matter who initiated the reconciliation as both decided to try once more. She said the husband knew about his wife’s affair in the past and he was still willing to give the marriage another try.
The judge said he couldn’t now claim misconduct on her part and demand that she forfeit her share in the estate. She said the pictures he is now complaining about were taken before they reconciled and while they had split up.
Judge Tlhapi said any misconduct relating to the period before they reconciled had been forgiven. The husband failed to prove misconduct after they reconciled and the wife was thus entitled to her portion of the estate.
The judge ordered the parties to “appoint a referee” to determine how the estate should be distributed.
Pretoria News