T v B (2113/2012) [2018] ZAFSHC 133 (17 September 2018)

T v B (2113/2012) [2018] ZAFSHC 133 (17 September 2018)

The court found that the absence of any provision for division of the joint estate and pension interest in the divorce order amounted to an unlawful forfeiture of patrimonial benefits, as no claim for forfeiture was made and no settlement agreement was proven. The law governing marriages in community of property dictates that division of the joint estate is an automatic consequence upon dissolution, and the pension interest forms part of the joint estate by operation of law. The court held that it is empowered to supplement the divorce order to give effect to these invariable consequences, notwithstanding the lapse of time, as the omission was substantive and not attributable to any...

Citation
[2018] ZAFSHC 133
Parties
Applicant: B T; Respondent: L B
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
17 September 2018
Case Number
2113/2012
Procedural Posture
Review Application / Application to Supplement Divorce Order Post Final Decree
Outcome
Application granted. The divorce order is supplemented to include division of the joint estate and pension interest.
Judges
Nulliah
Legal Topics
Division of Joint Estate, Pension Interest in Divorce, Default Judgment, Rule 42 Variation, Forfeiture of Benefits
Family and Children Civil Procedure Division of Joint Estate Pension Interest in Divorce Default Judgment Rule 42 Variation Forfeiture of Benefits

Case Brief

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Parties

B T

Applicant

L B

Respondent

Procedural Posture

Review Application / Application to Supplement Divorce Order Post Final Decree

Legal Issues

  1. 1 Whether the court may supplement a final divorce order to include division of the joint estate and pension interest after the decree was granted without such provision.
  2. 2 Whether the applicant is entitled to half of the respondent's pension interest as at the date of divorce.
  3. 3 Whether the absence of a division order amounts to an unlawful forfeiture of patrimonial benefits.

Ratio Decidendi

The court found that the absence of any provision for division of the joint estate and pension interest in the divorce order amounted to an unlawful forfeiture of patrimonial benefits, as no claim for forfeiture was made and no settlement agreement was proven. The law governing marriages in community of property dictates that division of the joint estate is an automatic consequence upon dissolution, and the pension interest forms part of the joint estate by operation of law. The court held that it is empowered to supplement the divorce order to give effect to these invariable consequences, notwithstanding the lapse of time, as the omission was substantive and not attributable to any...

Court Disposition

Application granted. The divorce order is supplemented to include division of the joint estate and pension interest.

Orders

  • The order granting the decree of divorce on 2 August 2012 is supplemented to include division of the joint estate equally between the parties.
  • The applicant is entitled to 50% of the respondent's pension interest calculated as at the date of divorce.