The maintenance act in South Africa makes allowance for a retirement benefit to be split in a divorce. There are only 3 Acts which make it possible for a court to rule on the division of a pension benefit, the Maintenance Act, the income tax act and pension funds act, any claims that fall outside of these acts make it impossible to make a claim against a pension fund.
In recent years, there has been much interest in the division of pension benefits in divorces and how the claim is practically enforced once a judgement has been made in the magistrates court. If the settlement order or the maintenance order has clearly defined the amount to be paid out to the ex spouse then the fund administrators will be obliged to act on the order and make arrangements for the payment.
If you are intending against your spouses pension fund, please be sure that the order is written to letter of the law. Pension fund administrators apply the letter of the law under all circumstances and as many of us have experienced with the law, unless the exact or unambiguous wording is used, there is always room for a lawyer to pick holes in it which can delay payments.
What must the order look like in order to be valid:
The divorce order must be issued by the correct court (high court, magistrates court or divorce court)
The fund must be identified and the fund administrators must be ordered by the court to make a payment to the ex spouse.
The amount of the payment or a percentage must be laid out in no uncertain terms.
The contributing member must still be a member of the fund.
Fund administrators change from time to time through buy-outs or other business sales and it is very important to make contact with the FSB in order to ascertain that the fund administrators are in fact correct.
Divorce and apportionment of assets in a divorce is never an easy thing and as with any legal case, it is essential to be fully prepared with evidence and facts to support a claim. Fund administrators will scrutinise every aspect of the court order and apply a test against every aspect before makeing a payout in order to protect themselves against any claims for negligence, so be very sure that the correct information is submitted and followed up with the fund administrators.
This is not to be viewed as advice, but as a guideline written by an interested party.