C.N.N v N.N (2021/11607) [2023] ZAGPJHC 208; [2023] 2 All SA 365 (GJ); 2023 (5) SA 199 (GJ) (23 February 2023)

C.N.N v N.N (2021/11607) [2023] ZAGPJHC 208; [2023] 2 All SA 365 (GJ); 2023 (5) SA 199 (GJ) (23 February 2023)

The court held that the applicant cannot claim pension benefits that accrued to the respondent before the divorce was granted. Section 7(8) of the Divorce Act only allows for the division of pension interests that exist at the date of divorce, not accrued pension benefits resulting from resignation prior to divorce. The legislative framework does not permit a non-member spouse to claim directly from the fund where the member spouse has exited the fund before divorce. The variation sought by the applicant, substituting 'pension interest' with 'accrued pension benefit', would be unenforceable and contrary to the statutory scheme. The application was therefore dismissed.

Citation
[2023] ZAGPJHC 208
Parties
Applicant: CNN; Respondent: NN
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
23 February 2023
Case Number
2021/11607
Procedural Posture
Variation Application / Unopposed Application for Variation of Divorce Order
Outcome
Application dismissed.
Judges
C Marumoagae
Legal Topics
Divorce Act Section 7 8, Pension Interest, Accrued Pension Benefit, Variation of Divorce Order
Family and Children Divorce Act Section 7 8 Pension Interest Accrued Pension Benefit Variation of Divorce Order

Case Brief

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Parties

CNN

Applicant

NN

Respondent

Procedural Posture

Variation Application / Unopposed Application for Variation of Divorce Order

Legal Issues

  1. 1 Can a divorce order be varied to substitute 'pension interest' with 'accrued pension benefit'?
  2. 2 Is such a variation enforceable under the Divorce Act?
  3. 3 Does the current legal framework allow a non-member spouse to claim pension benefits accrued before divorce?

Ratio Decidendi

The court held that the applicant cannot claim pension benefits that accrued to the respondent before the divorce was granted. Section 7(8) of the Divorce Act only allows for the division of pension interests that exist at the date of divorce, not accrued pension benefits resulting from resignation prior to divorce. The legislative framework does not permit a non-member spouse to claim directly from the fund where the member spouse has exited the fund before divorce. The variation sought by the applicant, substituting 'pension interest' with 'accrued pension benefit', would be unenforceable and contrary to the statutory scheme. The application was therefore dismissed.

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.
  • No order as to costs.