Can a spouse married in community of property at divorce claim that the other spouse forfeits their right to share in their pension?

Where married in community of property, spouses have the right to enjoy the assets brought into and accumulated during the marriage. Any deviation from this would be a forfeiture by a spouse of this right.

But, what if a spouse feels that it is unfair for the other spouse to share in his or her pension post-divorce because that spouse for example did not during the marriage share in the other’s pension?

The Pretoria High Court was recently tasked with such a question, where a wife in divorce proceedings claimed the forfeiture by her husband of his share in her pension post-divorce. The wife claimed that the husband had used her to provide for his children’s financial needs and also squandered his pension after he resigned from his job.

In considering the matter, the Court however found that the husband had used more than R400,000 of his pension to settle debts of the joint estate and that the wife had accordingly not satisfied the onus of proving substantial misconduct on the part of the husband and that he would be unduly benefitted if allowed to share in his wife’s pension. The court also looked at the duration of the marriage and the overall conduct of the husband and ordered the wife to pay about R1.2 million of her pension interest to her ex-husband at the date of divorce.

This confirms that although our courts may allow the forfeiture of a share in the pension of another spouse at divorce, the court will not lightly override the patrimonial consequences of the marriage and the party requiring such forfeiture will have to prove that if the share is not forfeited, the other party would unduly benefit.

Should you be considering divorce and have concerns about your spouse potentially sharing in your pension post-divorce, it would be advisable to consult with your family law specialist to help establish the merits of your case and whether there are grounds for claiming such forfeiture.

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