Cheating ex barred from grabbing half of wife’s pension

An angry wife, who was ordered to forfeit half of her pension to her ex-husband who had looted their joint business to spend lavishly on his mistress, has succeeded in her quest to keep her entire retirement investment. 

The Supreme Court of Appeal on Friday ordered that Mrs M be allowed to retain the full amount of her government pension after finding that her ex-husband – who had won half  in their divorce settlement – had in fact lied, cheated on his wife and committed gross misconduct. 

The couple were married on October 1 1985 “in community of property and profit and loss”. Mrs M worked as a teacher and together they started a family cash loan business, which did well and expanded. They built more businesses, including a funeral parlour, a cell phone depot, a poultry business and a spaza shop, while Mrs M also continued with her teaching job.

Mrs M claimed that in 2006 she found out that Mr M was involved in an extra-marital affair with one of their employees, identified as Eva. After two years she decided to “take the bull by the horns” and fired Eva. Mr M retaliated by telling her he was in love with Eva, planned to marry her and would build her a house and start another business with her. 

This triggered financial difficulties for Mrs M, as her husband stopped sharing the profits of the business with her. Then Eva bought a stand close to the marital home in Limpopo, on which Mr M built a double storey house for Eva – completing it in November 2012. During that time he sold nine of the 73 head of cattle they owned to a local chief and the proceeds were paid into the cash loan business “at the time when the roof of Eva’s house was constructed”. 

Mrs M said Eva was given access to the cars owned by her and Mr M without her consent, and that the relationship between Eva and her husband was public. She said Mr M had gone about building a business empire with Eva, while she was struggling to make ends meet.

Mrs M approached the maintenance court for help in respect of their youngest daughter’s educational needs. During the maintenance case Mr M declared that he had six other children born out of wedlock that he was supporting. The court in 2013 ordered Mr M to pay R750 a month for the girl. In 2015 Mrs M returned to the maintenance court after having put their children through primary and high school herself, and was upset that Mr M was refusing to pay for their tertiary education. The court ordered him to pay all the university fees from funds he had invested. 

During that time he sold nine of the 73 head of cattle they owned to a local chief and the proceeds were paid into the cash loan business 'at the time when the roof of Eva’s house was constructed' 

Mrs M said she had paid 80% of the building costs of the marital home and paid the medical aid fund contributions for the family – Mr M included. He, on the other hand, had failed to contribute proportionately to the household costs. 

In October 2016 Mr M filed for divorce. He claimed that Mrs M had humiliated and hurt him, that he had lost his love and affection for her, and they no longer had similar interests. He said Mrs M was denying him his conjugal rights, and he was no longer interested in continuing with the marriage. 

The divorce was granted, with the settlement declaring that Mrs M must pay over half of her pension savings to Mr M. 

Mrs M appealed the decision, claiming that although the marriage had broken down, she was not the cause. She countered that her husband had formed an adulterous relationship with Eva and had a child with her – a source of pain and humiliation for Mrs M. He had spent much of their business profits on Eva. She claimed that granting him half of her pension would afford him undue benefit. 

She admitted that she had refused to have sex with Mr M after finding out about his affair as she was afraid of contracting HIV. But the court found that she had “left the door open for him” by saying that if he ended things with Eva and was prepared to “maybe go and do some check-ups if there are some illnesses” she would reconsider. 

In support of her claim for a partial forfeiture of benefits, Mrs M told the court there had been “a grand scale fleecing of the joint estate” by Mr M. 

In his response, Mr M denied being in an affair with Eva, saying they were just friends. When confronted with documents proving he was in business with her, he conceded that she did have a business but he was just an employee and was working for free. He struggled to explain why he felt entitled to half of Mrs M’s pension. 

The Limpopo High Court dismissed Mrs M’s appeal and found in favour of Mr M on grounds that she had given him permission to “continue having extramarital affairs until he got tired of them” and had condoned the affair with Eva for nine years. 

As a result, she had waived her right to rely on an extramarital affair as a ground for the irretrievable breakdown of the marriage, and therefore her request for the forfeiture of benefits by Mr M had failed. 

Dissatisfied with this finding, Mrs M took the matter forward and asked for a review by the Supreme Court of Appeal, which found that the Limpopo High Court had misdirected itself and come to factually incorrect conclusions. 

The Supreme Court found that Mrs M’s refusal to accord conjugal rights to Mr M and her dismissal of Eva indicated that she was not willingly allowing the affair, and that during marital counselling Mr M had told their therapist that he had no intention of ever stopping having extramarital relationships. 

"On every possible interpretation or evaluation, I cannot subscribe to the conclusion that the applicant condoned the respondent’s extramarital relationship with Eva,” the court held, adding that Mr M had filed for divorce “once nothing was left in the joint estate, save for the applicant’s pension interest and a few assets”.  

The court found Mr M’s evidence to be riddled with contradictions, and his channeling of profits from the family business into Eva’s company was gross misconduct. He had also made no contribution to Mrs M’s pension. 

Mrs M had contributed all her income to the running of the home while almost all of Mr M’s income had gone to Eva. 

The court found that she should be allowed to retain the full amount of her pension, and that Mr M pay the costs of the action.