Family: Marriage relationship not like a business, says judge

A man who argued that his ex-wife was not entitled to benefits from their marriage in community of property because she had an affair and never made any meaningful contribution to their married life has lost his application for an appeal. According to a News24 report, the man wanted his ex-wife not to get half of his pension with the Government Employees' Pension Fund and two immovable properties, including the furniture. But in a recent Gauteng High Court (Johannesburg) judgment, the court said, ‘a marriage relationship is not like a business relationship where the sharing of profit and loss is determined only by the contribution being made by the partners or directors, whether financial or otherwise’.

The man’s lawyers had argued that the Vereeniging Regional Court had misdirected itself when it found the couple was equally to blame for the breakdown in their marriage instead of finding that the wife's infidelity – it came to light when she misdirected a WhatsApp message to her husband that was meant for her lover – was the ‘substantial misconduct’ that led to the breakdown in the marriage relationship. Judge Mpostoli Twala said the WhatsApp message became an issue but was discussed and resolved in 2016 when the husband forgave his wife. Thereafter, the couple continued with their marriage as normal.

Twala noted the appellant had only raised the infidelity issue in his counterclaim after being served with the divorce summons by the respondent, reports News24. ‘The appellant did not initiate the divorce proceedings based on the WhatsApp message, and even in his counterclaim, he only vaguely pleaded that the respondent (had) affairs and failed to return home for several nights. Moreover, substantial, or gross misconduct that leads to the breakdown of the marriage is not the only determining factor in ordering forfeiture of the benefits of arising out of a marriage in community of property.’ Twala said the ‘uncontested evidence’ of the ex-wife was that the breakdown of the marriage was caused by the ex-husband, who had been coming home late and night and sleeping out on some weekends. Twala said there was no merit in the argument that the ex-wife should forfeit the property because it was procured by the ex-husband long before the marriage. ‘The appellant had failed to furnish proof of the value of this property at the time when the marriage was concluded and at the time of divorce.

Similarly, regarding the appellant’s pension fund, he only gave estimated figures as to the value of his pension with the Government Employees Pension Fund, which he could not support with any documentary proof, nor could he demonstrate when he obtained those figures and whether it was a death or retirement benefit.’ He added: ‘Once a joint estate is established as a result of the marriage in community of property, the respondent is entitled to share in the property as a consequence of the marriage in community of property.’