Fritz v Fundsatwork Umbrella Pension Fund and Others

The applicant, Belinda Fritz, was married in community of property to the late Stephen Fritz. Two children were born of the marriage. The marriage was dissolved by a divorce order on 17 October 1992. Custody of the minor children was awarded to the applicant, and the deceased was ordered to pay maintenance and medical expenses. A division of the joint estate was ordered, but no order was made regarding the applicant's interest in any pension interest of the deceased. The deceased subsequently married the third respondent, and a child (the fourth respondent) was born. The deceased died on 10 July 2009. After his death, the second respondent resolved to pay out the deceased's death benefit from the first respondent pension fund (of which the deceased was a member at the time of his death) as 87% to the third respondent and 13% to the fourth respondent. The applicant sought a declaratory order that she is entitled to one half of the deceased's pension interest as at the date of the divorce, together with interest. It was undisputed that the deceased was not a member of the first respondent pension fund at the time of the divorce; he only became a member later, and a pension interest from a prior fund was transferred to the first respondent. It was further established that the applicant and the deceased had concluded a written settlement agreement in 1995 to divide the joint estate, and that the estate had already been divided. The agreement was silent on the pension interest.

• Whether a court may grant an order in terms of section 7(7) of the Divorce Act 70 of 1979 after the decree of divorce has already been granted.
• Whether a section 7(7) order can be granted after the joint estate has already been divided by agreement between the parties.
• Whether the failure to join the executor of the deceased estate is fatal to the application.

The application for declaratory relief was dismissed with costs.

Once a joint estate has, as a matter of fact, been divided (whether by agreement or otherwise), a court cannot grant an order in terms of section 7(7) of the Divorce Act deeming a pension interest to be part of the joint estate, because there is no longer a joint estate to be divided.

The court noted that if a joint estate has not yet been divided after divorce, it is open to a court to make a section 7(7) order as part of determining the patrimonial benefits to which the parties are entitled. The definition of 'divorce action' is broad enough to cover proceedings where the court exercises its supervisory jurisdiction in relation to the division of a joint estate in the absence of agreement.

The case clarifies the temporal limits of section 7(7) of the Divorce Act. It confirms that while a section 7(7) order may be sought after divorce where the joint estate has not yet been divided (following Maharaj v Maharaj), such an order is not competent once the joint estate has already been divided by agreement or otherwise. It thus establishes an important boundary on when former spouses can claim a share of pension interests after divorce.