Abstract
It is important that married couples seek legal advice with regard to the assets falling within their joint estate, more particularly their retirement benefits. This article reflects on the entitlement (if any) of non-member spouses to their spouses' retirement fund benefits. Pension benefits can be due before, during or after divorce, and parties to the marriage should be aware of their rights with regard to the accruing pension benefits of their spouses. While it is settled law that non-member spouses are entitled to receive a portion of their member spouses' pension benefits (known as "pension interest") immediately on divorce, it is not particularly clear whether non-member spouses are also entitled to receive the same before or sometime after divorce. In this article I provide a contextual understanding of the entitlements (if any) which spouses or former spouses of members of pension funds have on such member spouses' retirement benefits. Furthermore, it shown in this article that various divisions of South African High Courts have been inconsistent in how they have approached the issue of the pension interest between divorcing spouses or divorced ex-spouses.
Highlights
South African law regulating the division of retirement benefits on divorce when a joint estate existed between divorcing spouses has undergone significant changes in recent years
I am of the view that if the divorce order had been granted but the joint estate had not yet been divided it is logical that if there was any amount due to the nonmember spouse which was to be regarded as a pension interest had that amount been paid out at the time of the divorce, the non-member spouse should be able to claim a certain percentage of that amount
The court held that: I am of the view that where parties married to each other in community of property in subsequent divorce proceedings do not deal with a pension or provident fund interest which either or both of them may have had in separate pension or provident funds either by way of a settlement agreement or by an order of forfeiture, each of them remain[s] entitled to a share in the pension or provident fund to which the other spouse belonged ... and such share is to be determined as at the date of divorce by virtue of the provisions of section 7 (7) (a) of the Divorce Act 70 of 1979.70
Summary
South African law regulating the division of retirement benefits on divorce when a joint estate existed between divorcing spouses has undergone significant changes in recent years. These changes are reflected by the amendments which were made to the Divorce Act 70 of 1979 (hereinafter referred to as the "DA") in 1989 and the Pension Funds Act 24 of 1956 (hereinafter referred to as the "PFA") in 2007 and 2008 respectively. The discussion in this article will rely heavily on case law, thereby illustrating how inconsistent our courts have been when deciding on this issue
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