Does my pension interest in GEPF form part of my assets for purposes of divorce?

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.

Summarized:

  • 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.”

Xpression Assist can help ensure that all documents are submitted correctly and timely to ensure that your claim is processed as efficiently as possible.

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30 thoughts on “Divorce and the GEPF”

    1. Dear Mary, I can assist by checking at GEPF what is causing the delay. I have sent you an email with further information. Regards

      1. AGaleboe Elizabeth

        Xpression Assist may u pls advice on this matter…I stayed for 12 years with my ex husband in marriage in community of property. and we pared ways thereafter. It was stated in the deed of settlement that each one of us should benefit half of each other pension funds. Im in GEPF nd he was with UIF but no mention of percentage as well as name of the fund was indicated in the document. He resigned from UIF and I did not receive any money from his pensions. Unfortunately he passed away this year 2022 February. In this state of the contents of the deed of settlement can any claim still be made from my GEPF pension funds on my exit.

        1. Good day Elizabeth, by law it is required that the name of the Fund (GEPF) and the percentage payable to the non-member must be stipulated in the Divorce Decree. If it is not specified, the GEPF won’t make payment.Regards

          1. xpression assist please help
            i have been with my partner for 10years but he has just paid lobola and we are about to get married. I have worked for government for 17 years. Should we get divorced will he be entitled to 50% of the interest on pension for the duration of our marriage or all 50% of my pension since the inception

          2. Dear Desire, it all depends what you will agree upon at time of divorce. It needs to be stipulated in the Divorce Decree.

  1. Good Day
    My ex husband resigned before our divorce was final so his provident fund did not pay out but he claimed mine how is that fair?

    1. Xpression Assist

      Dear Zoleka, please note this is not the GEPF’s website. Unfortunately it is not a matter of “unfairness” but rather that your ex-spouse resigned before the GEPF was informed of a pending divorce. Your lawyer should have submitted a Motion of Notice informing the GEPF that there is a pending divorce. In this case they would have put the pay-out to your ex-spouse on hold until the divorce was finalized. Please refer this matter to your lawyer and ask for assistance to claim your share directly from your ex-spouse. Regards

  2. Dear Madam,My ex husband resighned before the divorce is final ,what can I do to get my portion.is it possible to go to GEPF to stop the money without a lawyer ?

    1. Xpression Assist

      Good day Yolanda, in order to stop the GEPF from paying your soon to be ex-spouse, you either need to submit a “motion of notice” through a lawyer or if you have already agreed and signed a Settlement Agreement you can submit a copy. Without this the GEPF might process his exit and pay him before you submit the divorce claim. Regards

  3. Good day
    I am married outside of cop with accrul, we are in the process of divorce my spouse is claiming 50% of pension and an accrul payout, my pension makes up my majority share, my accrul is only higher due to pension. Can she lay claim to accrul and pension

    1. Dear Matt, I am not a lawyer and can therefore not give any legal advice, I suggest you discuss this with your lawyer.

  4. Good dsay

    I divorced in 2006 and retired at the end of June 2021. I submitted all my documents through my HR at the end of March 2021 but GEPF returned these saying they needed a divorce settlement. At the time of the divorce, we did not sign any settlement. I went to my lawyers and we searched their archives and the court archives but no such document exists. I finally went to the court clerk who drafted a formal letter stating that no settlement document exist. I would like to know if GEPF will process the payout with the documents they have and are you able to assist in pushing for a faster payout as I have been struggling since the end of June 2021 with no income?

    1. Xpression Assist

      Dear Jabu, I cannot confirm whether GEPF will accept the letter done by the Court Clerk. I suggest you follow-up with your HR and ask them to check.

  5. Good day
    My divorce was finalised for over a year ago. Bt my ex spouse refuses to give me a decree of divorce and settlement documents so i can claim.
    As i was not contesting , a lawyer who was helping us have her all the documents.
    What should i do?

    Regards
    Doctor Aphane

    1. Xpression Assist

      Good day Doctor, you can retrieve a copy of your Divorce Decree and Settlement Agreement (if applicable) from the court where you got divorced.

      1. good day my name is Siyasiya
        We got devorce decree and applied for pension fund since November the 1st 2022 our 60 days ended in January the 1st 2023
        I’m told the matter is on GEPF legal services, what do you think they are busy doing and are they going to pay interest as over due ,we both are GEPF members.
        what is your fee charge if I hand over the matter to you ?

        1. Good day Siyasiya, I can assist by following-up on the claim(s). I have sent you an email on how my services work. Regards

    1. Hi Marti, I can most definitely assist to lodge your divorce claim successfully. I have sent you an email with further information. Regards, Janene

  6. hi, I was married out community of property without accrual, divorced in December 2019 and obtained a court order settlement that states that my ex husband is not entitled to anything.

    I resigned in December 2022, submitted all documents including copy of ANC and decree of divorce. my case has been with GEPF legal from 16th January 2023.

    can it be that divorce is delaying payment process?

    1. Good day Evodia, when a member resigns and it is noted on the system that they are divorced, it is normal practice for the file to go to the Legal Section to verify whether there is a valid divorce claim or not. Once verified it will go to the Payment section for further processing. I can however assist by following-up with them and ask for urgent processing. You’re welcome to contact me for further assistance, janene@xpression.co.za / 0833200145

  7. Good day,
    I submitted my documents in Dec 2022 and it was captured 13/01/2023, when I follow up they informed me my folder is by calculations. however my 60 working days will be over on 11.04.2023, so by when will they do the payment? I was also informed that I need to pay tax on the divorce settlement. what is the percentage?

    1. Xpression Assist

      Good day Tania, I have sent you an email with information on how I can assist you with your pending divorce claim. Regards

    1. Xpression Assist

      Dear Lionel, am I correct when I say, you’re asking if both of you can claim against the other’s pension? IF this is the case, then yes, you can claim against each other as long as it is correctly specified in the Divorce Decree/Settlement.

  8. Hi there

    Currently going through a divorce but my lawyer stated that the GEPF does not pay out anymore unless you resign or retire? Is this true?

    1. Good day Natasha, that is not correct. The “clean break” principal that was passed on the 13th of September 2007 allows you to claim your share even while the member is still a contributing member. Regards

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