Wife wins share of customary husband's pension in divorce after children defend her

The Bloemfontein high court has declared a man's civil marriage null and void as he has a customary wife who, supported by their daughters, disputed his claim of desertion and has secured her share of his pension.

This after the plaintiff, Mrs M, claimed a divorce and division of the joint estate, including the pension funds of her husband, Mr M.

The matter took a turn when the husband filed a counterclaim, seeking a forfeiture of patrimonial benefits order against her. 

According to the court, Mr and Mrs M entered into a customary marriage in 1980 in Sterkspruit in the Eastern Cape and three daughters were born of the marriage.

Mr M had to leave his family at his parental home in Sterkspruit when he went to work on mines in Orkney, North West. 

In 1995 he left his job to return to Sterkspruit.

Around 1998 Mrs M went to Bloemfontein to find employment, leaving the children and Mr M in Sterkspruit with her mother-in-law. Shortly thereafter Mr M also moved to Bloemfontein, where he found employment. 

“The marriage relationship was not destined to survive such adverse circumstances and for the next 22 years Mrs M and Mr M lived in Bloemfontein, but not under the same roof. They lived completely separated. As the children grew up, they one by one also came to Bloemfontein, where they lived with their father,” said the court.

Mr M, who carried the onus to prove a forfeiture order should be made, was the first witness to testify. He said Mrs M deserted him and the children years ago and did not contribute anything. He later moved to Bloemfontein, where he was employed by the municipality as a driver and did not know her whereabouts.

“Later on, the children came to live with him and he became responsible for their schooling and their upbringing. The plaintiff never came to visit the children at his place, he testified. The children are now adults,” said the court.

According to Mr M, the first time he saw Mrs M again was in court.

During cross-examination, Mr M testified that his assets consisted of his home and pension money, which he obtained in 2021 when he retired from the municipality. He denied Mrs M helped him find employment in Bloemfontein or that she visited the children from time to time.

However, Mrs M testified that she had not deserted Mr M or the children. She said she came to Bloemfontein to find employment because Mr M failed to provide adequately for her and the children. She was employed as a domestic worker by a Mr S, a CEO at the municipality. 

She denied deserting the children, saying she contributed funds and clothes for them and Mr M’s mother over the years.

Mrs M said she earned R3,500 a month as a live-in domestic worker and, through the assistance of her employer, obtained employment for Mr M as a driver for the municipal library. He was later transferred to the fire department.

She testified that she saw Mr M at a house he acquired years ago in Mafura, outside Bloemfontein, during regular visits to see the children and regarded the house as her home.

“When she visited the children at Mafura, she always took groceries for the children. She even contributed to the building of the house in Mafura by cooking food for the builders and providing them with water.

“Since 2018 there was no longer any relationship between her and [Mr M], and he got married again in 2020.”

The couple's eldest daughter, now 41 and married, denied her mother disappeared from their lives in 1998. She was adamant her mother was always present in her children's lives and that she never abandoned them.

Their 36-year-old daughter also testified that after her mother left Sterkspruit to work in Bloemfontein, she visited her children every holiday. She said when she lived with her father in Mafura, her mother visited them regularly and continued to support them.

Judge Phillip Loubser said the question was whether Mr M had established the benefits of the marriage in community of property to enable the court to decide whether Mrs M would unduly benefit from a forfeiture order. 

He said the court was in the dark regarding the specifics of the benefits of the marriage in community of property. “It follows that the court is not in a position to establish whether the plaintiff will be unduly benefited if an order of forfeiture is not granted against her. The counterclaim for forfeiture therefore cannot succeed,” he said.

Loubser ordered that the customary marriage between Mr and Mrs M be declared valid in terms of the Recognition of Customary Marriages Act and ordered the department of home affairs to register it.

Further, he ordered that the 2020 marriage between Mr M and his new wife be declared null and void and that the department of home affairs remove its registration from its records. 

A divorce between Mr and Mrs M was granted.

Loubser ordered a division of the joint estate, including Mr M's pension fund, and ordered him to pay Mrs M’s costs in the main action.

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