In what a report in The Mercury calls a ground-breaking judgment for couples married in community of property but divorced, the Supreme Court of Appeal has ruled that pensions fall into their joint estate and form part of half of the assets each party would receive. Pretoria divorce lawyer Selwyn Shapiro said that prior to this judgment, there were conflicting judgments as to whether or not a pension interest automatically fell into a joint estate if the parties were married in community of property.

‘The SCA has now clarified this and found that if an order is granted that the joint estate be divided – the so-called blanket division order – the pension interest of both parties automatically formed part of their joint estate,’ Shapiro said.

The judgment was sparked by the divorce in 2012 of a couple.

The High Court ruled in favour of the man and found that in the absence of a court order by the divorce court declaring the pension interests formed part of the joint estate, it did not form part of the joint estate. The woman approached the SCA, where three judges agreed that their pensions should be equally divided. The judges said sight must not be lost of the fact that the parties were married in community of property. One consequence of such a marriage was that, subject to a few exceptions, the spouses became co-owners of all interests acquired during marriage. The joint estate in this case must include the pension interests of both parties, the judges said.

Full report in The Mercury (subscription needed)

Ndaba v Ndaba