A wife who got infected with HIV while her husband remained negative, is entitled to benefit from the joint estate during a divorce settlement, ruled the Mpumalanga High Court.
The ruling was made after the wife filed for divorce and the husband brought a counter claim, seeking a forfeiture of benefits against the wife due to her HIV positive status.
The former couple concluded a customary marriage in November 2009 and a regime governing a marriage in community of property and profit and loss is applicable to a customary marriage.
During their marriage, they had one child who is now nine-years-old. The father challenged the paternity of the child, but tests confirmed that he was the father.
The parents, who are both police officers, stopped living as husband and wife since August 2017.
In the application, the wife said she left the matrimonial home because her husband was never home, he would be away for days without communication and when he was around, he spent time away from home and would always come back late or in the early hours of the morning.
She added that he was physically abusive towards her and he did so in the presence of their child. Over and above the abuse, they lived together for a year and have not afforded each other conjugal rights.
In his reply, the husband accused the wife of cheating and being promiscuous. He pointed out that she was HIV positive while him and the son were negative.
In his counter claim, he wanted the court to order a forfeiter of benefits against the wife due to her HIV positive status. He added that her being positive was a clear sign that she was cheating in their marriage because him and their son were negative.
In her reply, the wife argued that her HIV status was not the reason for the break-down in the marriage. Insofar as she was concerned, the marriage broke-down because the husband’s abusive behaviour and not spending time at home.
Furthermore, she said elders from both families tried to intervene and he told them he doesn’t want to be with her anymore.
Judge Brian Mashile who heard the matter, said in the counter claim, the husband never mentioned that the wife failed to contribute towards their joint estate during their 15-year of marriage.
He said given the duration of marriage and her contribution towards the joint estate, a forfeiture either wholly or in part, will unduly disadvantage her.
Regarding her HIV positive status, judge Mashile added that there was no evidence of how she contracted the virus and said: “Given that transmission of HIV is varied, this court cannot justly surmise that it emanated from any repugnant relationship.”
Moreover, the judge said even if the wife had contracted HIV as a result of engaging in sexual relationships with other people, there was no proof that her act brought diminution in the joint estate, and therefore there was no justification of ordering a forfeiture against her.
“In conclusion, it is the finding of this court that the duration of the marriage, the circumstances that led to the break-down of the marriage and conduct of the parties will not unduly benefit the plaintiff (wife),” said judge Mashile.
Judge Mashile ordered the joint estate to be divided equally between both parties including their government employees pension fund.