Marriage and Divorce

Section 37D(1)(d) of the Pension Funds Act previously permitted for deductions (in terms of a divorce order as contemplated in section 7(8) of the Divorce Act) to be made from the member’s benefit or minimum individual reserve.

The section was recently amended by the Financial Services Laws General Amendment Act. As of 28 February 2014, Section 37D(1)(d) of the Pension Funds Act states that a registered fund may:

"deduct from a member’s or deferred pensioner’s benefit, member’s interest or minimum individual reserve, or the capital value of a pensioner’s pension after retirement, as the case may be – ”

What is the effect of the amendment?

The effect is that the deductions in section 37D in respect of maintenance and divorce orders as well as income tax have been extended to the "member’s interest and capital value of a pensioner’s pension after retirement”.

The question now really is whether "capital value of a pensioner’s pension after retirement" includes annuities purchased post-retirement, like an Investment-Linked Living Annuity (ILLA). If so, does this mean a non-member spouse may now claim from such annuities as part of a divorce order? The answer is no if regard is had to the below:

1. Pension Funds Act 24 of 1956

As a general rule a fund may only make a deduction from a member’s benefit if such a deduction is permitted in terms of the Pension Funds Act, the Income Tax Act and the Maintenance Act. This general rule however has exceptions as set out in section 37D.

Section 37D(1)(d)(i) now reads that a registered fund may deduct from "a member’s or deferred pensioner’s benefit, member’s interest or minimum individual reserve, or the capital value of a pensioner’s pension after retirement as the case may be) any amount assigned from such benefit or individual reserve to a non-member spouse in terms of a decree granted under section 7 (8) (a) of the Divorce Act, 1979 (Act No. 70 of 1979)”.

The key terms (underlined above) are defined in the Pension Funds Act as follows:

• "Deferred pensioner” is defined as a member who has not yet retired but left the service of the employer concerned prior to normal retirement date leaving in the fund the member’s rights to such benefits as may be defined in the rules.

• "Member” is defined as meaning, in relation to --

- a fund referred to in paragraph (a) of the definition of "pension fund organisation”, any member or former member of the association by which such fund has been established;

- a fund referred to in paragraph (b) of that definition, a person who belongs or belonged to a class of persons for whose benefit that fund has been established,

(a) but does not include any such member or former member or person who has received all the benefits which may be due to him from the fund and whose membership has thereafter been terminated in accordance with the rules of the fund;

• "Pensioner” is defined as meaning a person who is in receipt of a pension paid from the fund.

Once a member retires and purchases a member owned annuity, he is no longer a member of the fund – he has effectively received all the benefits which may be due to him from the fund and his membership will thereafter be terminated in accordance with the rules of the fund.

Moreover, the words "the capital value of a pensioner’s pension after retirement” explicitly refers to "pensioner”, which in turn refers to the fund.

Even if you argue that this aims to include a pension paid by the fund (i.e. a fund owned annuity), where the fund still has commitments to the member, it would still not have any force or effect until the definition of "pension interest” in the Divorce Act is amended to include this.

It’s also interesting to note that section 37D(6) of the Pension Funds Act has been amended only to add the reference to "deferred pensioners”:

"(6) Despite paragraph (b) of the definition of "pension interest” in section 1 (1) of the Divorce Act, 1979 (Act 70 of 1979), the portion of the pension interest of a member or a deferred pensioner of a pension preservation fund or provident preservation fund, that is assigned to a non-member spouse, refers to the equivalent portion of the benefits to which that member would have been entitled in terms of the rules of the fund if his or her membership of the fund terminated, or the member or deferred pensioner retired on the date on which the decree was granted.”

2. Divorce Act 70 of 1979

Section 7(7) of the Divorce Act provides that a 'pension interest' (as defined in section 1) will be deemed to be a part of the assets at divorce:

"7) a) In the determination of the patrimonial benefits to which the parties to any divorce action may be entitled, the pension interest of a party shall, subject to paragraphs (b) and (c), be deemed to be part of his assets”

The wording of section 7(7) makes it clear that the non-member spouse is only permitted to a portion of the member spouse’s notional benefit if it qualifies as "pension interest” as defined.

"Pension interest” is defined in section 1 as referring to the benefits to which such member would have been entitled in terms of the rules of the fund if his membership of the fund would have been terminated on the date of the divorce on account of his resignation from his office, i.e. the member spouse must still hold a pension interest in the fund as at the date of divorce.

If a resignation benefit had already become payable to him before the divorce, he could not again be deemed to become entitled to a resignation benefit at the date of divorce. He would therefore no longer have a "pension interest” for the purposes of sections 7(7) and 7(8) of the Divorce Act read together with section 37D(4)(a) of the Pension Funds Act.

The Financial Services Law General Amendment Act has not made any amendments to the definition as quoted above and ccordingly, annuities purchased post-retirement remain excluded.

Conclusion

It might have been the intention of the legislature to close the "loophole” whereby someone can retire from a fund and purchase an annuity thereby effectively excluding it from the scope of section 7(7) and 7(8) of the Divorce Act. However, until the definition of "pension interest” in section 1 of the Divorce Act is accordingly amended, the changes will not affect annuities purchased upon retirement.

divorce anthony gooden incDivorce

 

Divorce is a very real phenomenon in South Africa, but not a topic of discussion until it becomes a reality for a couple.

On average, women are the hardest hit financially by a divorce.

 

 

A poll* surveying women on how separation and divorce affected their financial welfare, revealed the following results:

 

Anthony IncorporatedFinancial welfare of women after divorce

Focusing on assets alone, women lose 77% of their wealth in the first year of divorce with 27 out of 100 women facing financial destitution; whereas a male's income increases by as much as 25% if he leaves a childless marriage. Women generally receive primary custody of children, but no longer enjoy the benefit of a two-income household after separation and divorce. However, the majority of expenses remain the same after the divorce, such as housing, food, education and transport. Depending on the divorce agreement, and the regularity of the payment of maintenance, this frequently falls short, and should not be considered as income. Legislation is helping to improve the non-payment of maintenance, but to enforce this legislation, women are absent from work as they seek legal assistance and court orders for payment of maintenance. More women are working, so the financial effects of divorce are less, but still remain. Poor decisions made before, during and after a divorce can impact a woman's financial health for the rest of her life.
Every woman, regardless of her perceived financial status, and who she is divorcing, should seek the advice of a divorce attorney, a financial adviser and a tax specialist if possible. A tax specialist can ensure that the structure of a divorce order will prevent unnecessary loss of funds to tax, in particular capital gains tax (CGT). While the financial adviser can provide options that will present the best possible investment vehicle for any retirement funds owing to the wife as part of a divorce order; the most suitable life insurance for both parties to protect the financial security of any children in the event of either spouse's death; and assist in the changing of wills and beneficiaries on any other policies. Divorce is a highly charged emotional process, but if a woman can step back and make the right decisions, a divorce need not dictate her financial future forever.

*Independent poll conducted in 2010 among 50 British and American women divorced and divorcing.

 
 
 

Antenuptial Contract websitePreparing to get married under the Marriage Act

If you wish to get married, you must:

• ensure that you are legally allowed to marry;
• understand the legal consequences of a marriage, particularly that marriages in South Africa are automatically in community of property, unless a valid antenuptial contract has been entered into before the marriage; and
• ensure sure that your marriage will comply with all the legal requirements for a valid marriage.

 

Confirm your marital status

Due to the large number of fraudulent and illegal marriages reported to the Department of Home Affairs each year, it is imperative for you to confirm your marital status at any time, on-line on the department’s website:  http://www.dha.gov.za/marital_status.asp. You will need your South African ID number in order to use this facility.

You can also SMS the letter M followed by your ID number to 32551. A reply SMS will be sent back to your mobile phone to confirm your marital status and the date of your marriage, if applicable.

What documents do you need to supply?

On the day of the wedding, the couple must submit the following documents to the person officiating at the wedding:

identity documents (for each person getting married);
• if a foreign national is marrying a South African citizen, they must both present their valid passports, as well as a completed Declaration for the Purpose of Marriage, Letter of No Impediment;
• if the wedding is for a minor (a person under the age of 18 years), written consent of either both the parents/legal guardian or a Commissioner of Child Welfare OR the Minister of Home Affairs or a judge must be submitted.  If the minors getting married are under the ages of 18 years for boys or 15 years for girls, written consent from the Minister of Home Affairs is also required;
• if any of the persons getting married are divorced, then the final decree of divorce must be furnished; and
• if any of the persons getting married are widowed, the deceased spouse’s death certificate must be submitted.

Marriage officers


Marriage officers
Only marriage officers authorised in terms of the Marriage Act to perform marriages may do so. In addition to a marriage officer, the marriage must be conducted in the presence of at least two witnesses

• in a church or another building used for religious services;
• in a public office or private house, with open doors; or
• in the case of serious illness or injuries, in a hospital or any concerned facility.

In terms of the Marriage Act, the following persons may conduct civil marriages:

• Every magistrate, special justice of the peace and commissioner, in the territory or other area in respect of which, and for as long as he or she holds office.
• Any other officers or employees in the public service or the diplomatic or consular service of South Africa, whom the Minister of Home Affairs, or any officer in the public service authorised to do so, has designated as marriage officers by virtue of their office. A marriage officer of this class may have a general authority to perform marriages, or an authority limited to a particular group or class of persons or country or region.
• Any minister of religion or any person holding a responsible position in any religious denomination or organisation, who has been designated to perform marriages by the Minister of Home Affairs or an officer in the public service authorised by him/her according to Christian, Jewish or Muslim rites, or the rites of any Indian religion. A pastor’s authority may be limited to the solemnisation of marriages within a specified area or for a specific period.

Registration of the marriage

The couple, the two witnesses and the marriage officer must sign the marriage register immediately after the solemnisation of the marriage. Then the marriage officer must issue the parties with a handwritten marriage certificate free of charge. The marriage officer must then submit the marriage register to the nearest office of the Department of Home Affairs, where the marriage details will be recorded in the National Population Register. Non-fulfilment of these requirements does not affect the validity of the marriage and registration of the marriage can be affected postnuptially. A duly signed marriage certificate serves as prima facie proof of the existence of the marriage. In the absence of a marriage certificate, the existence of the marriage may still be proved by other evidence.

Recognition of foreign marriages


Recognition of foreign marriages

A marriage concluded outside the borders of South Africa will only be valid if it was concluded in terms of the formalities of the jurisdiction where the marriage was concluded.

Antenuptial Contracts


Antenuptial Contracts

Antenuptial ContractsYour Antenuptial Contract (“ANC”) is the most important documents you will sign in your lifetime. It is not a standard, pre-printed form which you can download off the internet! This can be an expensive misunderstanding. Failure to sign and conclude an antenuptial contract BEFORE you get married makes your marriage regime automatically IN community of property.
An attorney must assist in the drafting of an antenuptial contract.

Three matrimonial property regimes apply in South Africa:-

MARRIAGE IN COMMUNITY OF PROPERTY

This applies automatically where parties do not conclude an ANC. All assets and liabilities of spouses married in community, whether acquired before or during the marriage, fall within one joint estate. Although this is the truest form of sharing, it is commercially seldom viable as the entire joint estate is at risk of attachment by creditors, and the parties’ individual contractual capacity is usually limited. Individual ownership of assets and individual liability for debts is not possible.

MARRIAGE OUT OF COMMUNITY OF PROPERTY

This is achieved by concluding an ANC. Each party has, and maintains, a completely separate estate. Each spouse has and retains absolute independence of contractual capacity, and each party’s assets are protected against claims by the other party’s creditors. Each is liable for his or her own debt. There is no provision for sharing.

MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH INCLUSION OF THE ACCRUAL SYSTEM

The Matrimonial Property Act 88 of 1984 introduced the accrual system, devised to facilitate a form of sharing whilst each party retains their own separate estates and their contractual independence. Each spouse retains their own estate and may accumulate assets and incur liabilities without interference from or assistance of the other. The estate of each party is determinable separately from that of the other party. At dissolution of the marriage, each party’s estate is calculated by determining all assets, determining all liabilities, subtracting liabilities from assets and arriving at a nett asset value.

It is possible to provide for exclusions from this sharing:

In the ANC the parties may exclude certain assets from the sharing.

For an asset to be excluded it must be properly described.

Parties not wishing to specifically exclude assets (often wise if the assets may not still be in existence at dissolution of the marriage) may exclude a certain sum of money which is the agreed equivalent of assets which they do not wish to share (the "commencement value"). This sum will be updated to its equivalent value at the date of dissolution.

Excluding either a specific asset, or a commencement value, or both (which must be separate and not derived from the same asset), ensures that spouses share only what they choose to share.

Anything not excluded, and which is in the estate of either party at date of dissolution, whenever it was acquired, is included in the calculation of the estate of the party who owns or owes it.

The antenuptial contract will operate on death or divorce.

If you plan to get married it is please consult a reputable experienced family attorney, discuss your own specific requirements and ensure that you fully comprehend and understand the available options and the impact of your choice on your assets at divorce or death.

An ANC must be signed before the marriage ceremony is concluded and in the presence of a notary and two competent witnesses. The notary will register the contract in the local registry of deeds. The ANC must be registered within 3 months of the date of the marriage at the Deeds Office.

Muslim marriages officiated in terms of South African law


Muslim marriages officiated in terms of South African law

For over 300 years Muslim spouses and children suffered discrimination due to their traditional religious marriages not being recognised in terms of South African law. Muslim marriages are not recognised as legal marriages in South African law. Muslim women were denied spousal benefits such as the right to inherit intestate and to claim maintenance in terms of the Maintenance of Surviving Spouses Act 27 of 1990. Children from such marriages were labelled illegitimate, with attendant adverse consequences arising from this status. Previously, Muslim couples had to have their traditional marriages converted to civil marriages by way of a separate civil ceremony in order for it to be officially recognised and protected as valid marriages.

On Wednesday, 30 April 2014, over one hundred Imams (Muslim clerics) were officially appointed as marriage officers in terms of the Marriage Act 25 of 1961 (“the Marriage Act”) after a three-day course covering the principles of the Marriage Act and after passing an examination on the Marriage Act. These marriage officers are now able to officiate Muslim marriages in terms of the Marriage Act and register all marriages they officiate. Muslim marriages officiated in terms of the Marriage Act will be in line with the requirements of Sharia (Muslim law) and also be recorded as such on the National Population Register thereby receiving legal status and recognition.

This will come as excellent news to many Muslim women and children who have in the past found themselves in a similar position as the now late Suleiga Daniels, in the case of Daniels v Campbell N.O and Others and Fatima Gabie Hassam in the case of Hassam v Jacobs NO and Others.

Suleiga Daniels was initially not recognised as the surviving spouse of her husband, Moegamat Daniels, when he passed away without leaving a will and she consequently lost her house in 1994. The couple lived in the house for seventeen years as husband and wife after having married according to Muslim law in 1977. Daniels was informed by the Master of the High Court that because they were married in terms of Muslim law, she had no legal right to benefit from his estate. Daniels took to the courts and in 2003 she was successful. The court ordered that both the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of 1990 should be amended to make provision for the term ‘spouse’ also to include “a husband or wife married in accordance with Muslim rites in a de facto monogamous union”.

In the landmark case of Hassam v Jacobs NO and Others, Fatima Gabie Hassam could not inherit from her husband’s deceased estate when he passed away without leaving a will. The reason for this was that her marriage to him was not legally recognised as she was a party to a polygamous Muslim marriage. Fatima also approached the courts for relief and the Western Cape High Court ruled in her favour. The ruling was then referred to the Constitutional Court for confirmation. The Constitutional Court further ruled that Fatima had been discriminated against on the grounds of religion, marital status and gender and that her right to equality had been violated. The Constitutional Court confirmed that women who are party to a polygamous marriage concluded in terms of the Muslim law are deemed to be spouses for purposes of inheriting or claiming from the deceased estate where their deceased husband died without leaving a will.

This initiative to increase the number of Imams who are legally competent to solemnise civil marriages will undoubtedly allow for increased legal protection for Islamic spouses and their children.

During his congratulatory speech, delivered to the newly-graduated Imams, Deputy President Kgalema Motlanthe said: “... the registration of Muslim unions will accord Muslim marriages legal status and with that, the protective instruments of the secular state may be accessed to ensure that these Qur'anic values are realised and complied with within the Constitutional state. Out of this initial step we will be able to push back the frontiers of exclusion that have so long been visited on the Muslim community."


 
Useful Information

The legal implications of saying "I Do" - open the PFD and save the Brochure! The information provided is really useful, and easy to print for you to read through later!

Gavel And Books by hywardsIntro

The Matrimonial Property Act introduced ways to change the consequences that arose when a marriage was celebrated.

For example:
• Couples who married before or after the commencement of the Act can apply to court to change the applicable matrimonial property system;
• Either spouse whose conduct in administering the joint estate (in a marriage where joint administration operates) becomes intolerable, may have his or her powers of administration suspended by the court for a period.

 

 

 

Applying to court

A couple may at any time make a joint application to court to have their matrimonial system changed. They can do this regardless of whether the marriage took place before or after the promulgation of the Act or of the system chosen. The court must, however, be satisfied that:
• There are sound reasons for the change;
• Creditors have been notified sufficiently in advance;
• No other person will be prejudiced.
If permission, that is, an order of court, is granted, the couple will be authorised to enter into a notarial contract to give effect to their new choice.

Protection your assets from your spouse

If during the course of a marriage in community of property, or one subject to the accrual system, a spouse's interests are (or are likely to be) seriously prejudiced by the conduct of the other, he or she can apply to court for an order for the immediate division of the existing joint estate or the accrual.
The court may order an equal division or a division on any other basis that it considers fair. The court's power of division amounts to a judicial discretion to depart from the consequences that flow from the matrimonial system on the grounds of the economic misconduct of one spouse. If the court grants such an order, it may also direct that the community of property or the accrual system should, in future, cease to operate in the marriage.
Alternatively, if a husband is a spendthrift who prejudices his wife's interest in the joint estate, his wife can simply apply to the court to have his administration suspended and, if necessary, appoint a curator, who may be the wife. In this case, community of property will continue.

 

 

 

 

 

 

 

 

 

 

 

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