Husband who had children outside of marriage is entitled to wife’s pension fund, says court



Published Jun 7, 2024


A cheating husband successfully appealed a decision by the regional court after the Mthatha High Court in the Eastern Cape ruled that he was entitled to half of his wife’s pension fund.

The former coupled was married in community of property in January 1991 at Bizana.

After 31 years of marriage, the husband served the wife with divorce papers, she did not oppose the divorce. However, she was adamant that the husband should not get half of her pension fund because he didn’t contribute to the joint estate, he married another woman without her consent and didn’t take care of their children.

When granting the divorce in February 2023, the magistrate ordered that each party should retain insurance policies, investments and debts in his or her name.

Their home at Mt Zion was awarded to the wife, each party was to retain their pension interest and pay their own costs to the application.

Disenchanted with the ruling, the husband approached the high court in pursuit of half of the wife’s pension fund.

The wife was no represented in the high court.

Through his legal representative, the husband argued that he made a significant contribution to the estate. He said when they were building their house, he lost his job and he used some of his packages to buy building material.

He subsequently got a job where he drove a truck owned by his cousin and used his earnings to continue building the house.

When analysing the matter, two judges, acting Judge M N Hinana and Judge Thandi Norman, found that the husband contributed to the joint estate as well as the welfare of their children even though the wife disputed that.

The judges said the fact the husband had children out of wedlock and the effect of his actions had an impact on his wife’s health, was not enough grounds for forfeiture but it could have led to the strain of their marriage.

Moreover, the judges held that when they were building their marital home, they both apportioned financial responsibilities where the husband bought bricks and the wife bought iron sheets.

“That is just one of the contributions that the appellant (husband) made towards the joint estate. The finding that if the forfeiture was not ordered, he would unduly benefit, it is not consistent with those common cause facts,” read the judgment.

As a result, the high court ruled that the husband was entitled to half of his wife’s pension fund.

The court further ordered each party to pay own costs.

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