Husband fails to prove wife not entitled to 50% share of joint estate

The court has refused to grant an order that a wife should forfeit any benefits from a marriage in community of property.

The decision was handed down after her husband failed to prove that she had committed substantial misconduct in their nine-year marriage. In divorce proceedings instituted by the husband, he argued that his wife should forfeit her 50% share of the marital home and 50% of his pension interest in the Government Employees Pension Fund due to financial misconduct on her part and based on the short duration of the marriage.

According to the husband, the parties entered into an antenuptial contract in September 2017 and were subsequently married out of community of property, subject to the accrual system. On this basis, he argued that the wife should forfeit any benefits arising from the accrual.

The wife, however, argued that the parties had concluded a valid customary marriage and sought the division of community property.

In challenging the existence of a valid customary marriage, he argued that there was no handing over of the bride to his family.

By the second day of trial, he however admitted that a valid customary marriage existed and acknowledged that the parties’ patrimonial regime was therefore in community of property.

In the determination of the potential forfeiture of marital benefits by the wife, evidence was led that before the marriage, the husband had bought a property in Pretoria North for R190,000. In 2015, while the house was still being built, the husband and one of his children moved into an apartment rented by the wife, joining her and her child.

They cohabited there for two years before their marriage in April 2017.

The wife stated that she was responsible for the rent, electricity, and groceries, as well as household duties and care of the children. The evidence of the parties revealed that both contributed to the household expenses.

To finance the construction of the house, the husband obtained a bond and the wife secured three loans in her name, as the husband could not qualify for more credit.

The husband also obtained a loan of R50,000 from the wife’s sister and another loan from the wife’s friend.

The wife testified that the marital home, initially comprising three bedrooms, was expanded to seven bedrooms with six bathrooms. The husband covered the bond repayments, while the wife paid for six baths and other household expense.

In 2025, however, the husband sold the house without informing her. She only learned about the sale after receiving notice from his attorney, giving her one week to leave the home.

She then launched urgent proceedings to set aside the sale. In his testimony, the husband claimed to have repaid the loans taken out by the wife, but evidence suggested that only about R28,000 out of more than R100,000 had been settled. He acknowledged that he would not have been able to extend the house without the wife’s loans, and he also admitted that he still owed the wife’s friend about R250,000.

He further testified that the house was sold for R1.595m as he could not afford the bond, selling at a loss of R114,000.

In its decision, the court highlighted that the husband had the onus of proving that, if forfeiture was not ordered, the wife would be unduly benefited.

Judge Ronel Tomlay found that the husband failed to provide evidence of any undue benefit that would accrue to the wife if the joint estate was equally divided. No evidence was led to enable the court to determine the benefit or why the benefit would be undue.

In addition, the court found that the husband failed to prove substantial misconduct, financial or otherwise, by the wife. On the duration of the marriage, Judge Tomlay stated that although the duration of the marriage was brief, both parties continued contributing to the estate even after they no longer lived together.

Accordingly, the court granted the divorce and made an order for the division of the joint estate, including half of the husband’s pension.