Article by listed attorney: Fawzia Khan
If a person was married in community of property, failed in divorce proceedings to mention or claim any entitlement of a share in the pension interest of the member spouse, can that person, long after the divorce is finalized, later claim back the fifty percent of the pension interest? Before that question is tackled, it’s worth noting that when a couple are married in community of property, then all their assets and property, both movable and immovable, are joined and treated as if there is only one estate. This is often referred to as the joint estate of the couple.
In the case of K v K, this very issue became the focus in court proceedings. In this case a spouse claimed fifty percent of the other spouse’s pension interest, long after the divorce was finalized. The facts of this case briefly were the following. The man and woman were married in community of property. The woman, who was an estate agent, sued her husband who was employed by the Cape Municipality, for a divorce. She did not claim fifty percent of her husband’s pension interest, who was a member of the Cape Municipal Pension Fund. The husband didn’t defend the divorce and the divorce was finalized on the unopposed basis in 2005. All the woman sought in her divorce action was that there be a division of their joint estate and asked that she and her husband each retain their specified immovable property. In her divorce particulars of claim, she did not set out any details of the husband’s pension interest or claim any entitlement to it. Years later, the woman then applied to court where she sought the court’s consent to declare that she be entitled to fifty percent of her ex-husband’s pension interest, (even though no mention was made of any pension in the divorce action). In support of her application, she said that her ex-husband never disclosed to her he was a member of a pension fund. Neither did her attorneys, who then represented her, inform her of her right to such fifty percent of his pension interest.
The ex-husband opposed the application, saying that she was misrepresenting and that she was well aware of the existence of his pension interest. He said she had deliberately chosen not to make any claim from his pension interest, as she would have had to disclose her earnings in the estate agency and give the man his fifty percent share in such earnings. The court dismissed the woman’s application but gave her leave to appeal. The court of appeal however took a completely different stance on the matter and said that a couple who were married in community of property, remain entitled to a share in the pension or provident fund to which the other spouse belonged to even if there is nothing mentioned in any settlement agreement or pleading. The court then granted the woman an order declaring that she was entitled to fifty percent of the man’s pension and/or provident fund, valued at the date of the divorce.
The judgment in this case has met with much criticism by certain academics, leading advocates, pension and provident fund mangers. They argue that in coming to that finding, the judges hearing the case of K v K erred. The rationale used by the court is not supported by the prevailing legislation of the Pension Fund Act. The main argument is that where a member spouse has not received any pension or provident fund payout, the ‘pension interest’ is not deemed as an asset of the joint estate of the parties, according to the Pension Fund Act. The argument goes further that the only way a non-member spouse can lay claim to fifty percent of the other spouses’ pension interest is where the court is assigned to make such an order. In practice the claim for the pension interest is normally included in the divorce pleadings itself. For these and other compelling reasons it is evident that if you are faced with a divorce, that you choose your attorney carefully and ensure that she or he will have all the technical skills available to know what to claim on your behalf and more importantly, how to go about getting it for you so that ultimately you get you the best deal out of the divorce.
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