B.S.M (nee M) v N.A.M (HCA18/2015) [2016] ZALMPPHC 2 (17 June 2016)

B.S.M (nee M) v N.A.M (HCA18/2015) [2016] ZALMPPHC 2 (17 June 2016)

The court held that, in terms of section 7(7)(a) of the Divorce Act, the pension interest of a spouse married in community of property automatically forms part of the joint estate upon divorce and does not need to be specifically pleaded or applied for. The omission by the Regional Court to make an order under section 7(8)(a) does not amount to forfeiture of pension interests. The appellant retains the right to claim her share of the respondent's pension interest, and the respondent may counterclaim for his share of the appellant's pension interest. The appeal was found to be misdirected, as the correct procedure would be to claim the pension interest directly rather than appeal the...

Citation
[2016] ZALMPPHC 2
Parties
Appellant: B.S.M (nee M.); Respondent: N.A.M.
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
17 June 2016
Case Number
HCA18/2015
Procedural Posture
Civil Appeal / Appeal Against Regional Court Judgment in Divorce Proceedings
Outcome
Appeal dismissed with costs.
Judges
EM Makgoba, M Madima
Legal Topics
Division of Joint Estate, Pension Interest on Divorce, Divorce Act Section 7, Forfeiture of Patrimonial Benefits
Family and Children Civil Procedure Division of Joint Estate Pension Interest on Divorce Divorce Act Section 7 Forfeiture of Patrimonial Benefits

Case Brief

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Parties

B.S.M (nee M.)

Appellant

N.A.M.

Respondent

Procedural Posture

Civil Appeal / Appeal Against Regional Court Judgment in Divorce Proceedings

Legal Issues

  1. 1 Whether a pension interest of a party automatically forms part of the joint estate upon divorce.
  2. 2 Whether a claim regarding pension interest must be specifically pleaded in divorce papers.
  3. 3 Whether omission by the court to award a non-member spouse a share of pension interest amounts to forfeiture.

Ratio Decidendi

The court held that, in terms of section 7(7)(a) of the Divorce Act, the pension interest of a spouse married in community of property automatically forms part of the joint estate upon divorce and does not need to be specifically pleaded or applied for. The omission by the Regional Court to make an order under section 7(8)(a) does not amount to forfeiture of pension interests. The appellant retains the right to claim her share of the respondent's pension interest, and the respondent may counterclaim for his share of the appellant's pension interest. The appeal was found to be misdirected, as the correct procedure would be to claim the pension interest directly rather than appeal the...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed.
  • The appellant is ordered to pay the costs of the appeal.