A woman’s affair with her husband’s friend, and her decision to celebrate the pregnancy and birth on Facebook, has cost her heavily in a divorce case – including the loss of her half-share in his pension.
The South Gauteng High Court in Johannesburg has ordered that the wife forfeit her 50% share of her husband’s pension interest in the Municipal Gratuity Fund, despite the couple being married in community of property.
The couple married in January 2011, and the wife filed for divorce in August 2024, asking for a decree of divorce and an equal division of the joint estate. Both parties accepted that the marriage had irretrievably broken down, and they agreed in principle that the joint estate should be divided equally.
However, the husband asked the court to depart from the usual rule of equal sharing when it came to his pension. He wanted an order that his wife forfeit her 50% share of his pension payout, after he discovered that she had fallen pregnant by one of his friends and had publicised the baby shower on social media.
‘Intolerable’ betrayal and a Facebook discovery
According to the husband’s evidence, he discovered that his wife was in a romantic relationship with his friend, and that the affair had led to the birth of a child. He told the court that this betrayal made life in the marital home intolerable, and he eventually chased her out of the house.
He testified that from the start of the marriage, his wife did not work, and he alone provided for the family’s financial needs. He argued that while he carried this financial burden, his wife had been involved in an affair that ultimately produced a child with his friend.
The husband did not learn about the pregnancy directly from his wife. Instead, he said he found out when he saw a post on her Facebook profile announcing that she had had a baby shower. This social media post, which effectively celebrated the pregnancy that resulted from her relationship with his friend, became central to his claim that she should not benefit from his pension.
Legal test for forfeiture of benefits
In considering the husband’s application, the court explained that the onus is on the party seeking forfeiture to prove that the other party would be “unduly benefited” if no forfeiture order is granted.
To decide this, the court turned to section 9 of the Divorce Act, which allows a court to order forfeiture of patrimonial benefits when one spouse would be unduly benefited, having regard to:
- The duration of the marriage
- The circumstances that gave rise to the breakdown of the marriage
- Any substantial misconduct on the part of either spouse
Judge Noluntu Bam had to weigh these factors carefully in the context of a long marriage, a non-working spouse, and the emotional and public impact of the wife’s conduct.
Judge: misconduct goes beyond an affair
Judge Bam made it clear that the court was not only concerned with the fact that the wife had an affair with a third party, but with the way she chose to handle the pregnancy and birth in public.
The judge stated:
“What I regard as misconduct is not only the plaintiff’s involvement with a third party but the act of procreating with a third party and then publicising the birth by posting messages of her baby shower on Facebook.”
Judge Bam added that this behaviour must have humiliated the husband, noting that the combination of these events – the affair, the child with his friend, and the social media celebration – amounted to misconduct in terms of the law.
Non-financial contributions still recognised
Despite the husband’s argument that he alone had supported the family financially, the court did not simply dismiss the wife’s role in the marriage. Judge Bam stressed that staying at home and not earning an income does not mean a spouse makes no contribution.
The judge said:
“There is a whole system that runs in the background to make most family homes stable. In most instances, the management and co-ordination of these activities reside with the party who stays at home.”
The court accepted that as a stay-at-home mother, the wife had been responsible for the upkeep of the family home and for supporting the husband and the children in their daily life. These are recognised as important non-financial contributions within a marriage.
However, even after acknowledging this, the judge still had to decide whether, in all the circumstances, the wife would be unduly benefited if she received half of the pension.
Public humiliation tips the scale
The court ultimately found that the wife’s conduct – especially the public celebration of her child with her husband’s friend on Facebook – significantly altered the balance.
Her Facebook post about the baby shower was seen as compounding the hurt and humiliation caused to the husband. It was not simply private infidelity, but something made public in a way that affected his dignity.
Judge Bam found that, taking into account:
- The length of the marriage
- The circumstances surrounding its breakdown, including the affair with a friend and the child
- The wife’s decision to publicise the baby shower on social media
the wife would indeed be unduly benefited if she were allowed to walk away with 50% of the husband’s pension interest.
Forfeiture of pension granted
In the end, the court concluded that a forfeiture order was justified.
The judge held that the wife would be unduly benefited if the court did not intervene, and therefore granted the husband’s application that she forfeit her half-share of his pension in the Municipal Gratuity Fund.
The rest of the joint estate remains subject to division in line with their marriage in community of property, but when it comes to the pension, the court made an exception – a stark reminder that serious misconduct, especially when publicly displayed, can carry heavy financial consequences in divorce proceedings.
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