When Pension Benefits Slip Through the Cracks in Divorce – C.N.N v N.N [2023] ZAGPJHC 208

In a significant judgment delivered by Acting Judge Marumoagae AJ in the Johannesburg High Court, the case of C.N.N v N.N highlights a pressing legal gap in South African divorce and pension law—one that can leave economically vulnerable spouses without access to a fair share of retirement assets.

Case Overview

Case: C.N.N v N.N (2021/11607)Court: High Court of South Africa, Gauteng Local Division, JohannesburgDate: 23 February 2023Presiding Judge: Marumoagae AJ

The case concerned an application to vary a divorce order issued in October 2022. The applicant sought to replace the term "pension interest" with "accrued pension benefit" in the divorce settlement. This change was crucial because the respondent had resigned from his job—and exited his retirement fund—before the divorce was finalised. As a result, there was no longer a "pension interest" to divide under the Divorce Act.

The Divorce Act permits courts to allocate a portion of a spouse’s pension interest to the other spouse at the time of divorce—but only if the member is still active in the pension fund at the date of divorce.

The applicant's request to substitute "pension interest" with "accrued pension benefit" was made in good faith, based on advice from the pension fund. However, the court found that:

• The proposed terminology falls outside the statutory framework and would be unenforceable.

• Only a "pension interest"—as defined in section 7(8) of the Divorce Act—can be subject to a court order for division.

• Since the respondent had already resigned before the divorce, there was no longer a claimable pension interest.

Systemic Legal Gap

The court acknowledged a troubling pattern: member spouses sometimes exit pension funds deliberately during divorce proceedings to avoid sharing assets. This legal loophole is being used to the detriment of non-member spouses—often women—who are already in a weaker financial position.

This case calls attention to the urgent need for legislative reform, to close this gap and protect non-member spouses from strategic financial manipulation during divorce.

Court’s Decision

• The application to vary the divorce order was dismissed.

• The court made no order as to costs.

Key Takeaway for Clients

If you are going through a divorce involving pension benefits, timing is critical. Once a spouse resigns or exits a pension fund before the divorce is finalized, you may lose your legal right to claim a share. It is essential to consult legal professionals early to safeguard your entitlements.

📞 Need help navigating divorce, pensions, or family law? Our experienced legal team is here to guide you through the complexities with compassion and clarity.