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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12 thoughts on “Divorce and the GEPF”

    1. Xpression Assist

      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. 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. Xpression Assist

      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.

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