In the case of C.N.N V N.N (2021-11607)  ZAGPJHC 208 the Johannesburg High Court refused to vary a divorce order to allow her to claim a pension benefit from her ex’s pension fund.
The ex-wife filed an application to claim a portion of her ex-husband’s pension benefit from his pension fund after their divorce. However, the Johannesburg High Court refused to vary the divorce order to allow her to do so. The respondent had resigned from his employment and exited his pension fund before the divorce was finalized, leaving him with no pension interest at the time of the divorce. The applicant was not aware of this and only approached the fund after the divorce to claim her share of the pension benefit, which had already accrued to the respondent. She brought an application to vary the divorce order to direct the fund to pay her a portion of the respondent’s accrued pension benefit.
The Court held that the applicant was relying on a section of the Divorce Act to claim a pension benefit that had already accrued to the respondent through resignation, rather than a pension interest that should have accrued to the respondent due to the divorce. The Court also noted a gap in the law that does not adequately allow non-member spouses to claim portions of pension benefits when the member spouse exits the fund before the divorce. The application was dismissed as the Court was bound by the existing law, and the Court suggested that the applicant should have challenged the current legal position.
The existing law allows member spouses to deliberately prejudice their non-member spouses’ claims by resigning from their employment after being served with a divorce summons.