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How is a pension or retirement benefit split in a divorce?

How is a pension or retirement benefit split in a divorce?

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.

18 Responses to “How is a pension or retirement benefit split in a divorce?”

  1. P.P.EKAMBARAM says:

    I am in the process of accepting early retirement and require the settlment of the Telkom Retirement Fund after my divorce on the 18th August 2010.
    My salary ref 1780326
    tks
    Preggy

  2. A says:

    hi, how does the death benefit work on behalf of dependants.
    if the dependant is under age

  3. kgomotso says:

    there is one thing that i want to understand…how do u do ur culculations…becouse if ur married for less than 3 years,she cant get halh of ur money….will she only have half of the 3 years?

    • admin says:

      Hi Kgomotso, this is very much a thing for your lawyers to negotiate. All of the circumstances will need to be taken into account.

  4. monica says:

    I submitted forms for divorce benefits January.even today im still waiting.the response I get when I talk to the agent LEGAL SECTION is still busy.I must wait until when?

  5. Faith Hope says:

    How to obtain an order that directs the fund to endorse records to reflect the interest to the non-member spouse? Our divorce hearing is on Friday 13/05/16, sufficient uncertainty exist as to the lack of details my husband provided that can make the divorce order unenforceable against the fund which is my husband’s whole intention! This divorce has been going on for 7years of which I’ve been through absolute hell while he go on with his life, living with the 2nd woman(gf) & conceived 3 kids, both the 1st girl & the recent 1 living in the house which we shared, while I the legal wife/mother of our 2boys dont have any stability! He cant get away this time.. i will appreciate feedback/possible & the necessary info asap before the divorce hearing takes place on Friday. Thanku

    • Berenice Ankiah says:

      Hi

      Im going through the exact thing. My divorce was finilized 16 Sept. 2016 & until date I dont have an idea of whats happening with claim and dont have information about the benefits of the fund. Im getting no help of HR or legal aid. He’s also suppose to give me rehabilitation maintenance but since the court order doesnt state it he doesnt pay a cent. Its reali a shame what the legal support system has become & that we the victims have to just accept the corruption & unfair treatment. I will never give up, I serve a Living God & I know forsure He will NEVER forsake me! Eventually Justice will prevail!!

  6. Esme Williams says:

    I was divorced a long time ago. We were married in community property. I only received a settlement to my family home. My husband was in the Motor Union Pension Fund. He retired about 5 years ago. He receives a monthly pension from the union. I was not aware at the time of the divorce about the Pension Fund. I was only awarded legal Aid assistance. Can I was never given maintenance or any other financial support. All our assets i.e. property owned was in his dads name and he only received it after his fathers passing including my home.

    • admin says:

      Hi Esme, You would need to contact an attorney to deal with this. Perhaps you could approach a legal aid department at a University near you as it may be an interesting situation for them to take on.

  7. I’m on the process of divorce but now my husband Vusiwana Emanuel I Mtileni got his pension fund and get married with another wife mean while divorce process.is not yet finished and I want half amount of his pension fund

    • Help me to get half of the amount mtileni vusiwana Emanuel git his pension fund and we are still on the process of divorce now he get married of the widower mean while divorce process is not yet finished

      • admin says:

        Hi, you will need to make then application through your attorney or you can go to the magistrates court for advice from the maintenance officers.

  8. molatelo says:

    molatelo

    Hi my divorce was finalized last year July I submitted court order nd settlement agreement for pension 40123 since then I’ve been waiting every time I call they say next week;I want to find a place for my kids as he wants the house to be sold I have only 4months left as I was given 12mnths to find my own place.how am I gonna do that when I’m not getting paid pension funds.

  9. Steven says:

    Hi, so at the time of ones divorce both partys can have a claim on the others pension funds.But what if your marriage contract states pesion funds excluded from the accroule?

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