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South Africa decisions
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M.G.N v M.S.N [2023] ZAGPPHC 484; 4342/20 (2 June 2023)
The High Court varied a divorce order under Rule 42(1)(b), clarifying that the applicant’s living annuity and the respondent’s pension fund were already included in the equal division calculation.
C M v E M (1086/2018) [2020] ZASCA 48; [2020] 3 All SA 1 (SCA); 2020 (5) SA 49 (SCA) (5 May 2020)
The Supreme Court of Appeal held that while the capital underlying the respondent's living annuities is owned by the insurer and not accessible to the annuitant, the respondent's right to future annuity payments constitutes an asset in his estate for purposes of accrual calculation upon divorce. The court rejected the argument that the annuities are 'trust property' under the Financial Institutions Act, finding no fiduciary relationship or statutory indication to that effect. The court distinguished Commissioner, South African Revenue Service v Higgo as dealing with a different type of annuit…
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M v M (14/26868) [2016] ZAGPJHC 387 (10 August 2016)
The court found that the living annuity acquired by the plaintiff from his pension fund during the marriage is strictly regulated by statute and does not vest the capital in the annuitant. The capital is owned by the insurer and is not accessible, assignable, or available for commutation by the plaintiff. The statutory framework, including General Notice 18 and the Income Tax Act, establishes that the annuitant only has a right to the income stream, not the underlying capital. The ability to nominate beneficiaries or adjust drawdown rates does not alter the fundamental nature of the annuity a…
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M v M and Another (230/2016) [2016] ZAFSHC 132 (4 August 2016)
The court found that the applicant was attempting to enforce the deed of settlement against the second respondent, who was not a party to the agreement, and that such enforcement is not permissible. The living annuity administered by the second respondent constitutes a pension benefit protected under section 37A(1) of the Pension Funds Act, which applies to both the capital and monthly pay-outs while under the fund's control. Any order directing the fund administrator to pay a portion of the monthly proceeds to the applicant would amount to an impermissible reduction, transfer, or attachment…
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