Where couples are married in community of property or out of community of property with accrual, each spouse will have a claim against the other’s pension fund.
When the spouses are in the process of divorce and both have pension funds, they need to decide if they want to share in each other’s pension or if they want to keep their pensions.
An unemployed spouse and a spouse who does not have pension but is married to a person who has one, has a right to claim half share of the pension of their spouse.
During divorce, a spouse is not automatically given a share in a pension. If you want to have a share in your spouses’ pension, you need to specifically ask for it in the divorce summons.
You must also mention the name of the pension fund, for example Coca-Cola Pension fund, and the fund number, for example 9867834 and the percentage you want. You can claim half the spouse’s pension.
When the divorce has been finalized, the settlement agreement or the divorce decree must have the pension fund information. You then have a right to immediately make a claim with the pension fund company who has 45 days to ask you how you want to be paid, whether you want the money in cash or you want the money to be transferred to another pension fund company.
After you have made your choice, the pension fund company has 60 days to pay you or transfer the money to another company. It is important to note that you do not have to wait for your spouse to resign or to retire before you can get your share of the pension. It is available once the divorce is finalized.
Government Pension Fund (GEPF)
GEPF spouses are treated differently in that when a none-member (ex spouse) is paid his/her half share of the pension, the spouse whose pension was paid from has to pay back the GEPF.
When the ex spouse is paid the pension, this is seen as a loan that has been given to you to pay the ex spouse. This is known as Divorce debt.
GEPF paid the debt on your behalf and you must pay that money back. If you do not pay the money, it will accrue interest and when you resign or retire, GEPF will firstly take back the money it paid, plus interest and you will be given what is left.
For example, the money due to you on pension is 1 million and your ex spouse is paid R500 000 from this, you, as member of GEPF, must pay back this R500 000. If you do not have it, it will accrue interest and when you retire GEPF will firstly take the R500 000, plus interest, for example of R30 000, plus tax R80 000 and you may end up having R390 000 pension money due to you.
It is important to also note that a pension fund is only paid to a spouse who had a valid civil, customary and same sex marriage.
Partners who are in a vat en sit relationship do not have a right to share in the pension fund of their partner when the relationship ends.
The only time partners have a right to share in a pension fund is when their partner has died and they can prove that they were financially depended on that partner. Even if their partner was legally married to someone else, they still have a right to a share in a pension fund, together with the married spouse.
Nthabiseng Monareng is a family law specialist. She is the author of a book called A Simple Guide to South African Family Law (2008) and Concubines: The Legal Implications of Cohabitation and Customary Marriages on South African Black Women (2014). For more information you can contact her on 079 893 7701 or safamily.law@gmail.com.
