The short answer
No, your wife's adultery during your marriage is not grounds for annulment, and you still have to split assets 50/50.
The whole question
My wife was unfaithful during our marriage and is now pregnant and living with the father (not me). She and I are married in community of property, so she still wants half of my assets. Can I get this rule overridden or get the marriage annulled?
The long answer
To take the question of annulment first:
Burger Huyser Attorneys give the grounds for annulment of a marriage in South Africa below:
“A marriage concluded under duress, threat and intimidation;
A marriage entered into by a minor without the prior consent of their guardian or parents within six weeks of the marriage, or by the minor within three months of his/her attaining majority;
A marriage entered into where the woman is pregnant by a third party at the time of the marriage without her husband’s knowledge;
A marriage voidable if gross misrepresentation induced the marriage, misleading the other party fraudulently;
An application can be made by either of the parties where one is impotent at the time of the marriage.
The effect of an annulment is that the marriage will cease to exist. It will be as though the parties were never married, and marital status does not follow the parties.”
As it was not the case that your wife was pregnant by a third party without your knowledge at the time you married her, there are no grounds for annulment of the marriage.
https://www.divorcelaws.co.za/adultery-law.html describes a case involving adultery that was brought to court in 2015, where the court concluded that because of the changing values in our society, a claim based on adultery had become outdated, and the court therefore abolished it.
Chief Justice at the time, Mogoeng Mogoeng, together with Justice Edwin Cameron, added a brief additional judgment saying that the law had a role in supporting marriage by helping ensure that barriers to family life were removed, but that “the rest is in the hands of the parties to the marriage.” “The law cannot shore up or sustain an otherwise ailing marriage,” he stated. “It continues to be the primary responsibility of the parties to maintain their marriage.”
A marriage in community of property means that all the assets that one spouse accumulated before the marriage and all the assets that the couple accumulated during the marriage will become part of the joint estate. The only asset that may be excluded from the joint estate is an inheritance.
So, the answer to the question of whether your wife’s adultery can make any difference to the division of property in a community of property marriage is no, it cannot.
Wishing you the best,
Answered on Oct. 4, 2022, 2:30 p.m.
Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.