This case note highlights fundamental errors of law committed by Mabuse J in MM v OM [2024] (3) SA 133 (GP). It demonstrates that the judge failed to appreciate that the phrase “pension interest” as defined in the Divorce Act refers to a benefit held by a retirement fund that only becomes due to be shared when the court dissolves a marriage where one of the spouses is a member of the retirement fund. Most importantly, it is shown that Mabuse J ignored the binding precedent of the Supreme Court of Appeal and failed to consider other judgments of the High Court, which clearly explain that where an exit event from the fund is anything but divorce, there can be no pension interest that the court can order to be shared. This note argues that the law was incorrectly applied in this case, and its approach, reasoning and conclusion must be rejected.

This article discusses the law regulating living annuities when spouses in South Africa are divorcing. It demonstrates that South African courts have interpreted the law to prejudice non-member spouses financially. It argues that courts have failed to consider matrimonial principles when determining whether living annuities are susceptible to being shared on divorce. It argues further that adequate consideration of matrimonial principles will render it impossible for retirement fund members to prejudice their spouses financially by purchasing living annuities without the consent of such spouses, particularly when married in community of property. Disregarding matrimonial law principles may lead to deprivation of property.