The husband and wife were married in community of property and had three children during their marriage. The husband was a teacher and earned about R34 000 a month while the wife worked as a general worker and was paid R2 500 fortnightly. In 2017, after seven years of marriage, the wife filed for divorce saying her husband had an abusive conduct, used to come back home late at night and had at least two extramarital affairs that she was aware of. The wife said her ex-husband’s behaviour caused her depression and she was undergoing therapy. The husband launched a counter-claim saying he had never enjoyed a healthy marriage relationship and that there was no meaningful communication between them.

He said that in 2015, she erroneously sent him a WhatsApp message intended for her adulterous partner, expressing her love. The husband further argued that his ex-wife never made any meaningful contribution in the marriage in that all the assets were acquired as a result of his efforts. He therefore sought an order that she forfeit the benefits arising out of the marriage. However, the Regional Court refused and granted division of the joint estate. He then appealed the decision, in his new application, his legal representative argued that Regional Court misdirected itself when it made a finding that both parties were equally to blame for the breakdown of the marriage. His lawyer further argued that the court should have made a finding that the wife’s infidelity was the substantial misconduct that led to the breakdown. However, Judge ML Twala did not agree. He found that the WhatsApp message was discussed and resolved, the parties had continued with their marriage after the issue.

Judge Twala added that the husband did not initiate divorce proceedings based on the WhatsApp message and his counter-claim vaguely mentioned that the wife had (extra) marital affairs. According to Twala, substantial or gross misconduct that leads to breakdown of marriage, is not the only determining factor in ordering forfeiture of benefits arising out of a marriage in community of property. Twala also said that the ex-wife had uncontested evidence that the breakdown of the marriage had been caused by the ex-husband who had been coming home late at night and sleeping out on some weekends. “I am therefore of the view that the court a quo (previous court) has not misdirected itself in finding that in the circumstances of this case both parties were to blame for the breakdown in the marriage relationship,” Twala said.