A husband asked the court to order that his wife forfeit all patrimonial benefits acquired during their 15-year marriage. He claimed her HIV-positive status indicated that she had cheated on him and been promiscuous during their marriage.
In response, the wife approached the Mpumalanga High Court in Mbombela to obtain a divorce order and for their joint estate to be split between them. However, the husband lodged a counter-application, asking that the wife lose half of the assets due to her HIV status.
The couple ceased living together as husband and wife in August 2017. Both parties have since lost love, respect, and affection for each other, considering their relationship irreconcilable. The husband openly communicated to family delegates from both sides, who were meant to counsel and reconcile them, that he no longer wanted his wife.
The wife testified that her husband was physically abusive towards her, often in the presence of their child. She stated that he would stay away from home for days, returning in the early hours of the morning. Unable to endure the situation any longer, she left the matrimonial home with their child.
Conversely, the husband argued that their marriage broke down due to a lack of trust stemming from his wife's HIV-positive status. He accused her of infidelity and promiscuity, asserting that she could not have contracted HIV from him, as he is free of the virus. He maintained that the only reasonable conclusion to draw was that she was sleeping around.
He argued that it was only fair for her to forfeit her share of their estate, claiming she would unduly benefit if the court did not grant the forfeiture order.
Judge Brian Mashile stated that nowhere in the husband's court papers or evidence was there any indication that the wife would unduly benefit if the forfeiture order was not granted. “Put differently, there is no evidence that if the order is not granted, the defendant (husband) will be worse off,” the judge remarked.
The judge noted that both parties had worked as police officers and contributed to their joint estate. There were no allegations that the wife had failed to contribute during their 15-year marriage.
The court was also not convinced by the husband's assertion that the wife must have been cheating on him due to her HIV-positive status while he remained negative. “The assumption is that she acquired HIV from men with whom she ought to have been in sexual relationships. This assumption arises in the absence of evidence that the HIV was contracted from the plaintiff engaging in sexual relationships with others. Given that HIV transmission is varied, this court cannot justly surmise that it stemmed from any inappropriate relationship,” Judge Mashile stated.
He added that the birth of their child in 2015 implied that both parents had been sexually active and were HIV negative at that time. If this were not the case, it would be difficult to explain why the child was born free of the virus.
“I should perhaps also point out that even if the plaintiff had acquired HIV as a result of engaging in sexual relationships with other people, if there is no proof that her actions diminished the joint estate, there would be no justification for ordering forfeiture against her, aside from the fact that such an act is possibly morally reprehensible,” the judge concluded, dismissing the husband’s counter-application.
Pretoria News
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