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Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2015-07-10
The issue of pension fund, it's benefits and entitlement, often comes under the scrutiny amongst divorce lawyers acting for their respective clients who are embroiled in divorce proceedings.

Up until 1989, a divorced spouse had no entitlement to claim any portion of the retirement fund benefits of the other spouse. Since the pension interest of a member of a pension fund was not regarded as an asset in the joint estate. The monies in the pension fund were seen to belong to the pension fund itself rather than to the member.

The South African Law Commission recognized even though the retirement fund benefits of a member could not be immediately available on divorce, it did form an important part of the assets of the member's estate. The member's right to such benefits was referred to as the member's "pension interest". The SALC also recognized that the non-member divorcing spouse had a direct interest in the member's pension interest and that on divorce the pension interest of a spouse who is a member of a retirement fund must be regarded as being part of his or her assets.

This would allow the non-member spouse the right to share in the retirement fund benefits of the member spouse, depending on what type of marital system the couple had entered into.

The value of the pension interest of the member spouse therefore had to be easily ascertainable on divorce, in order to effect a division of the assets of the estate of the divorcing couple. Hence In 1989 we saw an amendment to theDivorce Act 70 of 1979(the Act), which changed stated that a "pension interest" will be deemed part of the assets on divorce.

This means that either spouse has a claim against the pension fund of his or her spouse on divorce. The court would be empowered to order that the non-member spouse be paid out a portion of the member spouse's pension fund. A pension fund is only allowed to make deductions from a pension benefit as set out in sections 37A and 37D of the Pension Fund Act.

Know your rights! The Law Desk of Fawzia Khan & Associates. Giving You the Power of Attorney. Emailfawzia@thelawdesk.co.za or call 031-5025670 for legal assistance at competitive rates.