A divorcing husband wanted his wife to forfeit her share of their marital estate because upon marriage, she did not declare that she could have children.
But equally, he did disclosed to her before saying “I do” that he suffered erectile dysfunction.
Neither party had made full disclosure before marriage and therefore the court could not penalise just one of the parties, a judge sitting in the Polokwane High Court, concluded.
The husband turned to the high court after a lower court granted the divorce and ordered an equal division of the joint estate between the parties. He wanted to appeal the latter part of the order as he felt his now former wife should forfeit her share of their joint estate because of her non-disclosure.
The appellant (husband) and respondent (wife) were married for about eight-and- half years at the time of the divorce. The evidence revealed that both parties entered the marriage without full disclosure - the appellant concealed his erectile dysfunction issues, while the respondent did not disclose her inability to conceive. Sexual incompatibility and fertility issues were the main causes of discord in the marriage.
The wife instituted divorce proceedings and equal division of the joint estate. The husband, in asking that she forfeit her share, said she did not play open cards with him about her not being able to conceive. He also complained that she had denied him conjugal rights.
The wife on the other hand maintained that she was supportive of the appellant despite his sexual performance issues. She said that she did not deny conjugal rights, but the appellant had erectile dysfunction. According to her, she was unaware that she was infertile.
The court said both parties contributed to the breakdown of the marriage through dishonesty at the outset of the marriage - the appellant concealing his erectile issues and the respondent concealing her infertility.
“Where both parties have contributed to the breakdown of the marriage, this will generally militate against a forfeiture order. The mutual fault, in this case, weighs against granting forfeiture,” the court said.
It added that while both parties engaged in some misconduct, neither party's conduct rose to the level of "substantial misconduct".
The husband also complained that his wife did not contribute financially to the estate, as she was a stay at home wife. He argued that she would benefit from an equal division of the joint estate without contributing equally in financial terms.
However, the court said, her non-financial contributions as a homemaker must also be considered, as the concept of a contribution must be interpreted to include both monetary and non-monetary.
The traditional role of a housewife and homemaker should not be undervalued simply because it could not be quantified in monetary terms. The wife’s contributions in this regard must be given due weight, the court said.
The relatively short duration of the marriage and the mutual fault in its breakdown also weighed against finding the benefit undue, the court said in concluding that the wife should share equally in the joint estate.
Pretoria News