Adulterous wife loses claim to ex-husband's pension fund after bearing two children out of wedlock

A woman who had two children outside of her marriage has lost her claim to a portion of her ex-husband's Government Employees Pension Fund (GEPF) as part of their divorce settlement. 

The woman, whose identity is being kept confidential, appealed to the Limpopo High Court in Polokwane, seeking to overturn a forfeiture decision made by a lower court during their divorce proceedings. 

The couple, married in community of property in November 2015, had one child together in 2016. At the time of their marriage, the woman was 30 years old, while her husband was nearly 60.

She left their matrimonial home in September 2019 and returned in 2020 but received a divorce summons during June 2021.

She finally left again in October 2021 after her ex-husband threatened to shoot her. She built herself a three-bedroom house and furnished it with the money received from the husband.

According to court documents, before her final departure from the house, she had extramarital affairs, and two children were born as the result of the affairs. The first child was born in February 2019, and the second child was born in June 2022. This indicates that her extramarital affairs began as early as 2018.

She claimed maintenance from her ex-husband for the two children, insisting that they were his. It was only after the man insisted on a DNA test which confirmed that the two children were not his.

In her application, she argued that the Magistrate erred in law by determining that infidelity constitutes grounds for forfeiture. She asserted that numerous case law precedents establish that a spouse seeking a forfeiture order must prove financial misconduct by the offending party to justify such an order.

She further argued that the court should not grant forfeiture because she had not engaged in any financial misconduct. Furthermore, she said there was no proof that she ever wasted joint estate assets with her boyfriend, a claim which was found improbable by the Magistrate.

Despite being unemployed during her marriage, she said that she made as significant contribution to their joint estate. She argued that the court should have prioritised her husband's abuse during their marriage and ignored her wrongdoing of having two children out of wedlock, as the abuse was a more significant factor.

She emphasised that adultery is not a reason for forfeiture; instructively, having children outside of marriage is a consequence of adultery, and adultery cannot be a reason for forfeiture.

However, Judge Mariska Naude-Odendaal found that the woman had no grounds to stand on and she turned down the appeal.

She further stated that the woman went as far as lying under oath that her two children born out of wedlock were her husband's when she applied for maintenance.

The judge dismissed her appeal, citing the significant misconduct. This included her habit of taking her husband's bank card and using his money with other men, engaging in extramarital affairs, and falsely claiming that children born out of wedlock were his until DNA tests proved otherwise.

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