Legal decisions made by a couple before their wedding day hold significant influence for them in the event of divorce. The implications are determined by the Marriages Act, Recognition of Customary Marriages Act and the Civil Union Act. This article highlights the importance of an antenuptial contract before the wedding ceremony, as well as pension interest that may become due to a divorced spouse under the Divorce Act.
Izigqibo ezisemthethweni ezenziwa sisibini ngaphambi kokutshata kwaso ziba nempembelelo ebalulekileyo kuso xa kusibakho oswelekayo okanye xa kusibakho uqhawulo-mtshato. Iziphumo zixhomekeke kuMthetho weMitshato, uMthetho wokuGqalwa kweMitshato yeSintu noMthetho woManyano lokuZithandela lwaBesini esiFanayo. Eli nqaku liqaqambisa ukubaluleka kwekontrakti esayinwa phambi komsitho womtshato, kwakunye neenzuzo zomhlala-phantsi ezinokuba selungelweni leqabane eliqhawule umtshato ngaphantsi koMthetho woQhawulo-mtshato.
It is often said that “Marriage is made in heaven, but lived on earth”. The reality of South Africa’s divorce rate requires couples to consider the implications of divorce before entering into a marriage union. An area often neglected during the divorce process, for example, is the claim against a portion of a former spouse’s retirement savings to which their spouse may be entitled.
In terms of the Divorce Act, the retirement benefit forms part of the fund member’s assets and must be considered when dividing your marital assets. This is especially important in the instance where one spouse, for example, has put their career on hold to take care of the children, and in doing so has not built up sufficient savings for their retirement.
However, if couples are living together as ‘husband and wife’ and not married under a legal Act of Parliament, such as the Marriages Act, Recognition of Customary Marriages Act and the Civil Union Act, there cannot be a pension interest transfer. Under these circumstances, there is no marriage capable of dissolution in terms of the Divorce Act, which usually enables the transfer of a pension interest benefit. However, the Pension Funds Act, which regulates all private funds, was fairly recently amended to allow for a pension interest transfer on the dissolution of an Islamic marriage by an order of court.
The legal terms of a marriage will determine the guidelines for financially exiting the union. In terms of the law, if you are married in community of property or out of community of property, with the accrual system, you may be entitled to a portion of your former spouse’s pension interest. The benefit allocated to the nonmember spouse is now payable from the date of divorce. This was not always the case. Before 2007, the non-member spouse had to wait until a benefit is accrued to the member before being able to access the divorce benefit assigned to them. The non-member spouse would therefore only be able to access the divorce benefit upon the member’s exit from the fund due to either resignation or retirement.
With the introduction of the ‘clean break’ approach in 2007, which applies to pension, provident, retirement annuity and preservation funds, the non-member spouse may immediately claim the portion of the member’s pension interest and can elect to receive a cash benefit or transfer the benefit to another retirement fund. Where a person does decide to split their pension interest and claim payment from their retirement fund, they must remember that there are certain legal requirements that have to be met before their retirement fund can pay part of their benefit to their former spouse.
In a pension or provident fund, pension interest is the amount of money that a spouse would have received if they resigned on the date of the divorce. This does not mean that the retirement fund member needs to split their pension interest in half to pay their former spouse. They have the choice to pay the amount that the former spouse would have received from the retirement fund, or from other assets in the estate. Also, important to note is that the pension interest claim against a spouse is not limited to 50%. In terms of the law, parties can claim anything from 0.1% to 100% of the pension interest benefit of the former spouse.
An antenuptial agreement is entered into where couples do not want to get married in community of property and is concluded before marriage. An antenuptial agreement might be especially important for someone who already has assets (e.g. a business) or family obligations (e.g. children) from a previous marriage. The contract ensures that partners retain their own separate estates and are not liable for each other’s debts, for instance, unless they have taken out the debt jointly or a spouse provided personal security for the debt of the other.
4 KEY REQUIREMENTS FOR A DIVORCE ORDER
Inclusions required in a divorce order, in terms of the Pension Funds Act, to facilitate an uncontested and timeous pay-out:
- A divorcing party must still be a member of their particular retirement fund on the date of the divorce order.
- The name of the fund must be in the divorce order, or the fund must be identifiable from the divorce order.
- The divorce order must specify the amount that the former spouse should receive.
- The divorce order must specifically order the fund, and not, for instance, the member, to pay a part of the pension interest to the former spouse.
Antenuptial agreement with or without accrual
Without accrual, partners keep what is theirs before marriage and also keep what becomes theirs after marriage. If the agreement is with the accrual system, each party still retains their own estate, but the agreement determines how the growth in each partner’s estate will be shared.
Accrual takes effect when the marriage ends due to divorce or death. Should the marriage end, the partner with the smaller accrual has a claim against the other. The claim is for the difference between 50% of the aggregate of the values of the two estates, and the lesser spouses estate or any percentage as agreed to by the parties in their antenuptial agreement.
What if there’s no ‘prenup’ agreement?
If no prenuptial contract is signed between the parties before they get married, they are automatically deemed to be married in community of property. This entails that all the assets and liabilities of both parties are added together and the estate is deemed to be a combined estate; the spouses’ wealth is not seen separately. Should the couple divorce, or one spouse pass away, the joint estate will be divided equally between the parties.
In the event of the death of one spouse, the estate will be divided in accordance with a will that has been drafted, either jointly or separately by the two parties. If there’s no will, the estate will be divided in accordance with the Intestate Succession Act, starting either with the children of the parties, or alternatively to the parents of the parties or alternatively to the siblings of the parties.
Marriage is a valid and binding contract, which can only be dissolved by a regional or high court in South Africa. As with any contract, before entering into marriage, couples must carefully consider the legal implications thereof. From a financial standpoint, couples should consider how they would like to have their estates divided in the event of divorce in order to ensure their financial wellbeing.
Old Mutual | Personal Finance Magazine
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