Kirchner v Kirchner and Another (20358/08) [2008] ZAGPHC 415 (5 November 2008)

Kirchner v Kirchner and Another (20358/08) [2008] ZAGPHC 415 (5 November 2008)

The court held that sections 37D(1)(d) and (e) of the Pension Funds Act, introduced by the Pension Funds Amendment Act 11 of 2007, do not apply retrospectively to divorce orders granted before their effective date of 13 September 2007. The absence of express retrospective effect in the legislation, the potential impairment of vested rights, and the requirement that the pension fund be named in the divorce order all indicate that the legislature did not intend retrospective application. As the applicant's divorce order did not name the relevant pension funds and was granted before the amendments took effect, she is not entitled to immediate payment of her share of the pension interest...

Citation
[2008] ZAGPHC 415
Parties
Applicant: Gertruida Jacoba Kirchner; Respondent: Jan Dirk Kirchner; Respondent: MPF Bestuursdienste (Sentinel Mynindustrie Afteefonds en Mynwernemers Pensioenfonds)
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
5 November 2008
Case Number
20358/08
Procedural Posture
Urgent Application / Unopposed Motion for Immediate Payment of Pension Interest Following Divorce
Outcome
Application dismissed.
Judges
Gildenhuys
Legal Topics
Pension Interest on Divorce, Matrimonial Property Act, Retrospective Application of Legislation, Divorce Act Section 7, Pension Funds Amendment Act
Family and Children Civil Procedure Pension Interest on Divorce Matrimonial Property Act Retrospective Application of Legislation Divorce Act Section 7 Pension Funds Amendment Act

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Parties

Gertruida Jacoba Kirchner

Applicant

Jan Dirk Kirchner

Respondent

MPF Bestuursdienste (Sentinel Mynindustrie Afteefonds en Mynwernemers Pensioenfonds)

Respondent

Procedural Posture

Urgent Application / Unopposed Motion for Immediate Payment of Pension Interest Following Divorce

Legal Issues

  1. 1 Whether the applicant is entitled to immediate payment of 50% of the first respondent's pension interest under the amended Pension Funds Act.
  2. 2 Whether sections 37D(1)(d) and (e) of the Pension Funds Act apply retrospectively to divorce orders granted before 13 September 2007.
  3. 3 Whether the absence of named pension funds in the original divorce order precludes payment under the amended legislation.

Ratio Decidendi

The court held that sections 37D(1)(d) and (e) of the Pension Funds Act, introduced by the Pension Funds Amendment Act 11 of 2007, do not apply retrospectively to divorce orders granted before their effective date of 13 September 2007. The absence of express retrospective effect in the legislation, the potential impairment of vested rights, and the requirement that the pension fund be named in the divorce order all indicate that the legislature did not intend retrospective application. As the applicant's divorce order did not name the relevant pension funds and was granted before the amendments took effect, she is not entitled to immediate payment of her share of the pension interest...

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.