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N v N [2022] ZAGPPHC 885

COLLIS J

14 November 2022

FAMILYDivorceForfeiture – Pension fund – Allegations of financial abuse – Whether substantial misconduct proved – Divorce Act 70 of 1979, s 9.

Facts: The parties married in 2004 in community of property. There were no children born in the marriage although the plaintiff entered the marriage with two children born from a previous marriage. The plaintiff has now instituted divorce proceedings.

Claim: Plaintiff seeks division of the joint estate and 50% of defendant’s pension fund. The defendant counterclaims for forfeiture of the benefit pertaining to her government employee pension fund.

Discussion: Marriage in community of property and the requirements for forfeiture of benefits; the contentions by the defendant that the plaintiff resigned from his job which was to the detriment of the joint estate, that he received R1,7 million from his pension that he used for his sole benefit, and that he was financially abusive towards the defendant and failed to contribute his fair share to monthly expenses.

Findings: The plaintiff paid out a portion of his pension to the joint debts. When comparing the testimony of the parties, the court is not persuaded that the defendant has proven that the plaintiff was financially abusive during the marriage. Plaintiff’s evidence on paying for school fees, household and other expenses was admitted by the defendant. She has been unable to discharge her onus of proving substantial misconduct to justify a forfeiture order.

Order: A decree of divorce is granted, plaintiff is to be paid R1,233,654 from the government pension fund, and division of the remainder of the estate is ordered. Each party is to pay its own costs.

COLLIS J

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