BS v PS

The appellant (Ms BS) and respondent (Mr PS) were married out of community of property subject to the accrual system on 1 July 1988. The marriage lasted approximately 28 years. The appellant was the main breadwinner, earning R59,000 per month and contributing 80% of household expenses, while the respondent earned R20,000 per month. The respondent's estate showed an accrual comprising (1) the matrimonial home valued at R1,450,000 with a bond of R584,000 (net R866,000) and (2) his pension interest in the Government Employees Pension Fund valued at R4,537,231. The appellant's estate showed no accrual. The marriage broke down in 2016 when the respondent was transferred to Port Alfred, which the appellant could not accept as it would require her to repay R150,000 to her employer FNB. Both parties had been unfaithful during the marriage. The appellant subsequently began a relationship with Mr W and left the matrimonial home. The trial court granted the divorce but ordered that the appellant forfeit 80% of her right to share in the accrual, limiting her to 20% (R173,200 of the matrimonial home and 20% of the pension interest), and further ordered deferral of payment of the pension interest until the respondent's retirement.

• Whether the trial court erred in ordering that the appellant forfeit 80% of her benefits in the marriage on the grounds that she caused the breakdown of the marriage and contributed less to the accrual
• Whether the appellant caused the irretrievable breakdown of the marriage
• Whether the appellant contributed less than the respondent to the accrual of the respondent's estate
• Whether a court has jurisdiction to defer payment of a pension interest assigned to a non-member spouse under section 10 of the Matrimonial Property Act 88 of 1984 when section 24A of the Government Employees Pension Law, 1966 applies
• Whether section 24A of the GEPL ousts the court's jurisdiction to grant deferment under section 10 of the Matrimonial Property Act

The appeal succeeded with costs. Paragraphs 28.3 to 28.7 of the trial court's order were set aside and replaced with: (a) The respondent must pay R433,000 to the appellant in satisfaction of her accrual claim regarding the matrimonial home (50% of R866,000). (b) The Government Employees Pension Fund is ordered to pay the appellant 50% (not 20%) of the respondent's pension interest calculated as at the date of divorce (1 November 2016) in accordance with section 7(8)(a)(i) of the Divorce Act 70 of 1979 read with section 24A of the GEPL, with payment to be made in accordance with the provisions of the GEPL (i.e., without deferral). (c) The registrar must notify the Fund to endorse its records that 50% of the pension interest is payable to the appellant. (d) The respondent must pay the appellant's costs in the court a quo and on appeal.

Section 24A of the Government Employees Pension Law, 1966 (as amended) ousts the jurisdiction of a court to defer payment of a pension interest assigned to a non-member spouse under section 10 of the Matrimonial Property Act 88 of 1984. The deeming provision in section 24A(2)(a) that the pension interest accrues on the date of divorce is conclusive and irrebuttable. The peremptory defined periods in section 24A(2)(e)-(h) requiring payment within specific timeframes (maximum 225 days from presentation of the order) are irreconcilable with discretionary deferment and reflect the clear legislative intention to implement a "clean-break" principle. Allowing deferment would defeat the object of section 24A. When considering forfeiture of accrual benefits, a court must properly assess the evidence regarding both parties' contributions to the accrual of the estate and their respective roles in the marriage breakdown. A forfeiture order cannot be based on erroneous factual findings. Relevant factors include the duration of the marriage, the relative financial and non-financial contributions of each party, whether one party has housing or pension provision, and a balanced assessment of fault for the breakdown rather than focusing on isolated incidents.

The court noted that no evidence was led regarding whether the appellant possesses a pension for her old age, which would have been a relevant consideration. The court observed that the marriage "was not a marriage made in heaven" and that both parties bore responsibility for its difficulties. The court noted the respondent's admission that he was jealous, accused the appellant of affairs, and that they argued frequently with shouting and swearing, and that the appellant had obtained a protection order against his verbal abuse. The court commented that it was not surprising the appellant wished to terminate an obviously unhappy marriage. The court described the deeming provision in section 24A(2)(a) as "conclusive or irrebuttable" rather than "merely prima facie or rebuttable" following the approach in S v Rosenthal.

This case establishes important principles regarding the division of pension interests upon divorce and the interaction between the Matrimonial Property Act and pension legislation. It clarifies that section 24A of the Government Employees Pension Law, 1966 (as amended in 2011) ousts the court's jurisdiction to defer payment of pension interests assigned to a non-member spouse under section 10 of the Matrimonial Property Act. The judgment reinforces the "clean-break" principle in pension division, ensuring that non-member spouses receive their share of pension benefits promptly after divorce without having to wait for the member spouse's retirement or other exit event. The case also provides guidance on forfeiture orders under section 9 of the Matrimonial Property Act, emphasizing that courts must properly assess both parties' contributions to the accrual and their respective roles in the marriage breakdown, and should not make forfeiture orders based on erroneous factual findings. It demonstrates the importance of considering the entire history of the marriage, including duration, relative contributions (both financial and non-financial), and the circumstances of breakdown, rather than focusing on a single event or relationship.