Pretoria – Three brides, two of whom the first wife did not approve of, came back to bite a husband as his first wife obtained an order that he may not receive half of her pension benefits upon their divorce.
Reprinted from iol.co.za, by Zelda Venter – 2023-10-24
The husband, who, ultimately, had four wives, turned to the Gauteng High Court, Johannesburg, to obtain a divorce against wife no 1. As part of the divorce order, he wanted what he termed his half of his first wife’s pension because they were married in community of property.
The wife, however, launched a counter claim in which she asked that he forfeit his half of the benefits of their marriage, as he had married two of the three wives after her, without her consent.
She told the court that her husband would unduly benefit if half her pension was awarded to him.
The husband, however, told the court that wife no 1 had given consent for him to marry all three wives over the years. He said that he was married to the defendant under customary law and had fathered three children with her. They were married in 1993.
He said he had wanted to marry a second wife and his first wife had agreed. He had paid lobola for his second wife in 2002 and the marriage had been celebrated in church.
He was asked what had happened to his civil marriage.
The husband replied that he had consulted attorneys and was advised to divorce his first wife. He explained that his first marriage “was put on hold”, meaning he would temporarily divorce her in order to marry the second wife.
He said that his attorney had advised him that he needed the consent of the defendant to marry his second wife, which he had obtained and that had taken place at the office of his attorneys.
At the time of the present divorce hearing, the husband confirmed that he had four wives, one of them being the defendant.
He said he had subsequently married wife no 2 in 2002, wife no 3 in 2010 and the fourth wife in 2018.
He was adamant that in respect of all three wives after the defendant, he had obtained the consent of the defendant.
However, he said that his marriage to his first wife had broken down and both of them had obtained protection orders against each other.
He testified that he had contributed to the purchase of all the immovable properties as well as the motor vehicles during the time of their marriage.
He also called two of his wives to confirm that the first wife had given consent to their marriages.
The first wife confirmed that she had entered into a civil marriage with the plaintiff in 1993 and that the marriage was dissolved in 2005 so that the plaintiff could marry wife no 2.
She said that she had not consented to his marriage even though she had purchased the wedding dresses.
The first wife told the court that if she had no choice, she would take the plaintiff back as a husband.
But Acting Judge G Ally said: “It is my view that a court may not and cannot force one party to remain married to his/her spouse in circumstances such as the present.”
The court found that the parties’ civil marriage was dissolved in 2005 but that they continued to live as husband and wife.
At the time of the present hearing, they were husband and wife under customary law.
The regime attached to such marriage was one in community of property. Neither of the parties had shown or proved that a contract excluding certain property from the joint estate was concluded, nor had they shown or proved that an ante-nuptial contract was concluded, the judge said.
“This court is of the view that a finding that consent from the defendant was provided cannot be made in favour of the plaintiff. I was impressed with the evidence of the defendant on this aspect,” the judge said.
He said the fact that the first wife had bought the dresses for two of the other wives was not proof that she had consented to the marriage.
Her explanation in that regard was that she was saving on the costs and did not want unreasonable amounts to be paid for the dresses.
She testified that she had paid R3 000 for one of the dresses, instead of R15 000 for the dress that the bride-to-be had been eyeing.
The judge said that the husband and his witnesses were not able to produce documentary proof of consent.
The judge said the first wife has proved that the husband had committed substantial misconduct in that he had married the third and fourth wife without her consent.
The defendant has proved that the plaintiff would have unduly benefited if half of her pension interest or benefit was awarded to him. The same, however, could not be said in respect of the rest of the joint estate.
The assets must remain in the joint estate to be divided equally between the parties, the court concluded.
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