A 70-year-old woman who cashed in her pension and spent most of it in 2014, has failed in her bid to claim half of her husband’s pension in their divorce.
The Bloemfontein high court found that by behaving “selfishly” towards her husband, Mrs K had “rendered herself guilty of substantial misconduct” and was therefore entitled to only 25% of his pension. The court ruled that she was not entitled to the R14,000 a month spousal maintenance payment she demanded, nor did Mr K have to keep her on his medical aid.
In her divorce action, Mrs K asked the court to instruct the University of the Free State’s provident fund to record that she was entitled to half of Mr K’s pension as of the date of their divorce, and that she must be paid out within 120 days of his retirement in December.
Despite the couple never having disclosed their earnings to each other during their 23-year marriage, Mrs K demanded spousal maintenance and medical cover. Mr K said he was happy to keep her on his medical aid but could not continue post-retirement as his contributions would no longer be fully subsidised. And the maintenance she was demanding was more than the entire monthly pension, he told the court.
The couple were married in February 2000 in community of property. In January 2014, Mrs K cashed in her pension and kept the entire R273,986 payout, refusing to contribute anything to their joint estate, telling Mr K that the money was for her and her children. They decided to get divorced after their relationship broke down irretrievably in 2021.
Mrs K told the court she had paid for several household items and expenses with her pension money — including her daughter’s wedding, furniture and paving. But Mr K was able to show that they had shared these costs which were paid before she retired.
Confronted with the evidence, Mrs K blamed her mistaken memory on her diabetes. Mr K, on the other hand, discovered only during the divorce proceedings that she still had part of her payout invested.
“[Mrs K] was hell bent on painting [Mr K] as an irresponsible husband who did nothing for the marriage after the fifth year, and when caught out, she would blame her forgetfulness on diabetes and being tired,” the court said, accepting that Mr K was asking for Mrs K’s claim to half his pension to be forfeited “on the basis of her substantial misconduct”.
“It is my considered view that by behaving in this way, the plaintiff rendered herself guilty of substantial misconduct,” the court held.
“It was also clear that [Mrs K’s] prayer for R14,000 per month was made from a position of ignorance since the amount even exceeds what the defendant would be getting on a monthly basis should he elect taking one third of his pension and monthly payout,” the court said.
Mrs K testified that she moved out three years ago, lived with her son briefly and was now living on R10,000 a month from her son in a rented apartment.
She argued that Mr K should pay her monthly maintenance which he could pay from his one-third payout, with the amount varied later if this became unmanageable.
“The argument that an order can be varied later is nonsensical and grossly unfair to the defendant. [Mrs K] wants half of the pension, and more of [Mr K's] share in the form of spousal maintenance and medical aid... It goes against principles of justice and fairness,” the court said, adding Mr K would be hit with additional legal costs should the maintenance order be varied.
When asked what she would do if not granted the order to be retained on Mr K’s medical aid, Mrs K said she would ask her son as he is a doctor.
“It follows that this court cannot burden the defendant with an order he cannot afford,” the court said, ordering Mrs K to maintain herself, sort her own medical cover and take only 25% of Mr K’s pension.
The divorce was granted and their joint estate ordered to be equally split.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.