Whether or not there is a need to specifically plead a claim for a pension interest in the summons or plea and/or counterclaim in order for the Court to order a retirement fund to pay the pension interest to the non-member spouse?

Setion 1 of the Divorce Act 70 of 1979 defines pension interest as: “in relation to a party to a divorce action who (a) is a member of a pension fund (excluding a retirement annuity fund), means the benefits to which that party as such a member would have been entitled in terms of the rules of that fund if his or her memebership of the fund would have been terminated on the date of divorce on account of his resignation from his office”.

Although the Determinations by the Pension Funds Adjudicator have made it clear that a valid Section 7 (8) Order must state that the pension interest or any portion thereof must be paid, The Divorce Act 70 of 1979 and the Pension Funds Act 24 of 1956makes no mention of whether or not a claim should be pleaded in the summons or plea and/or counterclaim in order for the Court to order a retirement fund to pay the pension interest to the non-member spouse.

In the most recent case; Ndaba v Ndaba SCA, the Honourable Judge TM Makgoka stated the following in paragraph 31, “the result those decisions which held that if there is no reference in the divorce order of parties married in community of property to a member spouse’s pension interest, the non-member spouse is precluded in perpetuity from benefitting from such pension interest as part of his or her share of the joint estate, were wrongly decided. It follows that the liquidator will be justified in regarding the pension interest of either party as part of the assets of their joint estate which has yet to be divided between them”.

This simply means that once the Court orders that there should be division of the joint estate, the Pension interest forms part of that joint estate and the Pension Fund Adjudicators should desist from requiring non-member spouses to apply to Court to have the variation order to be varied in order for the non-member spouse claim to be enforceable against the Pension Fund because the amendment and /or variation process is time consuming because it delays the process and is also prejudicial to the interest of the non-member spouse.

Reference List:

De Rebus January/ February 2017 edition page 38 – 39.

Ndaba v Ndaba [2017] 1 All SA 33 (SCA).