M.C.M v M.R.M and Another (DIV 129/2012) [2014] ZANWHC 31 (30 October 2014)

M.C.M v M.R.M and Another (DIV 129/2012) [2014] ZANWHC 31 (30 October 2014)

The court held that the applicant was not entitled to the relief sought because the first respondent had retired before the divorce was finalized, causing his pension interest to cease to exist for purposes of the Divorce Act and Pension Funds Act. The urgent interim order for safekeeping of pension benefits was no longer competent, as the divorce settlement agreement, incorporated into the decree of divorce, provided for the applicant's entitlement to a specific amount. The applicant's remedy lies in enforcing the settlement agreement, not in compelling the pension fund to pay out benefits that no longer exist as pension interest under the law.

Citation
[2014] ZANWHC 31
Parties
Applicant: M C M; Respondent: M R M; Respondent: North West University Pension Fund
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
30 October 2014
Case Number
DIV 129/2012
Procedural Posture
Urgent Application / Return Date of Rule Nisi; Post Divorce Decree
Outcome
Application dismissed; rule nisi discharged; costs awarded against applicant.
Judges
R D Hendricks
Legal Topics
Pension Interest on Divorce, Division of Joint Estate, Urgent Interdict, Pension Fund Act Section 37a, Divorce Act Section 7, Enforcement of Settlement
Family and Children Civil Procedure Banking and Finance Pension Interest on Divorce Division of Joint Estate Urgent Interdict Pension Fund Act Section 37a Divorce Act Section 7 +1 more

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Parties

M C M

Applicant

M R M

Respondent

North West University Pension Fund

Respondent

Procedural Posture

Urgent Application / Return Date of Rule Nisi; Post Divorce Decree

Legal Issues

  1. 1 Whether the applicant is entitled to an order compelling the pension fund to pay half of the respondent's pension interest into her attorney's trust account.
  2. 2 Whether the applicant retains any claim to the respondent's pension interest after his retirement and before the divorce was finalized.
  3. 3 Whether the urgent interim order for safekeeping of pension benefits remains competent after the divorce settlement.

Ratio Decidendi

The court held that the applicant was not entitled to the relief sought because the first respondent had retired before the divorce was finalized, causing his pension interest to cease to exist for purposes of the Divorce Act and Pension Funds Act. The urgent interim order for safekeeping of pension benefits was no longer competent, as the divorce settlement agreement, incorporated into the decree of divorce, provided for the applicant's entitlement to a specific amount. The applicant's remedy lies in enforcing the settlement agreement, not in compelling the pension fund to pay out benefits that no longer exist as pension interest under the law.

Court Disposition

Application dismissed; rule nisi discharged; costs awarded against applicant.

Orders

  • The rule nisi issued out of this Court on 2 May 2014 is discharged.
  • The applicant is ordered to pay the costs of this application.