In a judgement delivered in August 2016 the South Gauteng Local Division of the High Court was called upon to determine whether the capital invested in a living annuity formed part of the estate of the annuitant for purposes of calculating the accrual claim upon divorce. The parties agreed that, once a person has retired from a retirement fund, the capital in a living annuity no longer qualifies as a “pension interest” as defined in the Divorce Act, 1979. The defendant’s case was, however, that the capital invested in a living annuity by the plaintiff after his retirement formed part of his estate and should be taken into account in calculating the accrual claim upon dissolution of the marriage by divorce.
The court held that, as the plaintiff has no right to access the capital while alive, the capital does not form part of his estate and can therefore not be taken into consideration when determining the accrual in the plaintiff’s estate for purposes of calculating an accrual claim under the provisions of the Matrimonial Property Act, 1984.
Read the court case here: M v M  ZAGPJHC 387