Depending on the nature of your marriage, the court may make a ruling as to how the assets shared in your marriage, such as for example a house, vehicles and the like be divided between you and your spouse.
The question is whether the pension interest of any party to the divorce forms part of the assets? The answer is: yes. The Divorce Act 70 of 1979 (Divorce Act) determines that the pension interest of each party forms part of the assets that a court may divide in dissolving the marriage – the only marriages excluded from this provision are marriages out of community of property entered into on or after 1 November 1984 in terms of an ante-nuptial contract by which community of property, community of profit and loss and the accrual system are excluded.
There are three types of marriage regimes in South Africa:
- In community of property – everything is pooled into a joint estate; husband and wife become owners of all assets at the time of the marriage, and all assets and liabilities thereafter. The advantage is economic equality. The disadvantage is there is no protection if one of the spouses becomes insolvent or is sued. The joint estate will be liable for the debts of both parties;
- Out of community of property before 1984 – it is common in such a marriage for one party to have significantly more assets than the other. For instance, the wife brought up the children, while the husband was the breadwinner. In the event of divorce in this instance, the courts have discretion to award a redistribution of assets;
- Out of community of property after 1984 – unless specifically stated in the ante nuptial contract, such a marriage is subject to the accrual system; what is amassed over the life of the marriage is accrued. If a marriage out of community of property after 1984 with accrual is dissolved, the parties get an equal share of what they have amassed over the marriage, minus what they owe.
The Accrual System
Under this arrangement, what you brought into the marriage remains yours. If you get divorced, the increased value of both partners’ assets is added and divided by two with each partner due half the value.
Most people opt for the accrual system as it usually pans out the fairest. If you’re in any doubt, consult an independent attorney for guidance.
If accrual is expressly excluded, the parties have no claims against each other, other than for maintenance.
- If you are married in community of property you are entitled to 50% of your spouse’s pension fund. Calculated from the date of contribution.
- If you are married out of community of property
- with the accrual system you are entitled to 50% of your spouse’s pension fund. Calculated from date of marriage.
- without the accrual system you do not have any claim on your spouse’s pension.
In conclusion, depending on your marriage regime, should you be entitled to a share in your ex-spouse’s Pension Fund, your Final Divorce Order and/or Settlement Agreement must specifically stipulate that you are entitle to the percentage share of his/her pension interest in the Government Employee Pension Fund (GEPF). The following must be specified:
- The exact percentage that you are entitled to
- The name of the fund (GEPF)
- If possible, the reference number of the member
The correct citation as given by the GEPF’s Legal Section in a divorce decree should be:
“In terms of Section 7(7) and 7(8)(a)(i) and (ii) of the Divorce Act 70 of 1979 it is agreed that 50% of the pension interest, due and assigned to the (member), held in the Government Employees Pension Fund be paid to the (claimant) by the aforementioned fund when any such pension benefits accrue in respect of the (member), up to the date of the granting of the Decree of Divorce. An endorsement to this effect must be made in the records of the abovementioned Pension Fund, member number XXXXX.”