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Assumedly,    you are relaxing and deliberating on instituting divorce proceedings against your spouse. Nevertheless question remains, have you thought of financial implications associated with the preset divorce action?

In the matter of Ndaba v Ndaba (600/2015) [2016] ZASCA 162, Ms. Ndaba (Appelant) was married in community of property with Mr.Ndaba(Respondent )and their marriage was dissolved by the trial court and later she instituted legal proceedings against the Mr.Ndaba in the Gauteng Division of the High Court, Pretoria in which she sought a declaratory order  that she and Mr.Ndaba were entitled to an amount equal to 50 per cent of each other‟s pension interest. In addition, she sought an order directing each pension fund to make an endorsement in its records that a portion of the pension interest of the member spouse, as at the date of divorce, shall be payable to the non-member spouse when the pension benefits accrued.

Disappointingly her application as alluded above was refused by the Gauteng Division of High Court and , being aggrieved by the latter’s decision , she approached the Supreme Court of Appeal for a relief in that the pension interest of Mr.Ndaba should form part of a joint estate.

On appeal, the court held that the pension interests of spouses married in community of property are, by default, deemed to be part of the joint estate at the dissolution of the marriage, each party is entitled to a half-share of the joint estate, including the pension interests, where applicable, except where there is an order of forfeiture in terms of Section 9(1) of the Divorce Act or an express agreement between the parties to the contrary.

The legal effects of this case law are that in the event you getting into a divorce process with your spouse, you are mechanically entitled to 50 % (percent) of his or her pension money and vice versa unless there is a forfeiture order in place or agreement to the contrary.

Initially, you had to fight for the pension money of your spouse; it is no more the case. It is yours too and vice versa.

However, I must accentuate that it remains your accountability to safeguard that the divorce order is sent to the relevant Pension Fund(s) concerned so that the Fund could alter its records and commence with its process in this regard. Do not leave it late, act upon the receipt of the divorce order.

 Mr.V.E Mavuya, Director, Mavuya Attorneys INC, vuyisilemavuya@mavuyainc.co.za

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