A spouse going through a customary divorce may know that the other spouse belongs to a pension or provident fund, yet still be uncertain whether that retirement interest can be divided. The answer depends on more than proof that the fund exists. The validity and structure of the marriage, the applicable matrimonial property regime, the member’s fund status and the wording of the court order all matter.

A pension interest in customary divorce is therefore not an automatic half-share of every retirement benefit. The claim must have a proper legal basis, be supported by reliable fund information and be expressed in terms that the relevant fund can implement.

Pension interest in customary divorce starts with the marriage

Before calculating a pension claim, the parties must establish that a valid customary marriage exists and determine its proprietary consequences. This is especially important where the marriage was not registered, its validity is disputed, or the husband entered into more than one customary marriage.

Registration is evidence of a customary marriage, but failure to register does not by itself invalidate an otherwise valid marriage. If validity is disputed, evidence may be required about the parties’ consent, lobola negotiations, the handing over or integration of the bride, the customs observed by the families and the conduct of the parties after the marriage.

The date of the marriage also matters. So do any antenuptial contract, section 7(6) contract, court order or other legally relevant arrangement affecting the marital property system.

Our guide to divorce from a customary marriage explains the broader legal context. The separate article on a customary marriage in community of property addresses the property consequences in more detail.

The property regime determines the patrimonial claim

A pension split in customary marriage proceedings cannot be decided without identifying the applicable property regime. A monogamous customary marriage may be in community of property, subject to another valid regime, or affected by the date on which it was concluded and the applicable statutory provisions.

Where the marriage is in community of property, a spouse’s pension interest may form part of the assets considered when the joint estate is divided. That does not mean that the non-member spouse invariably receives half of the fund value. The outcome may be affected by the terms of a settlement, a forfeiture claim, the nature of the benefit and the member’s status at the date of divorce.

Where the marriage is out of community of property or subject to another property arrangement, the legal basis and calculation may differ. The attorney must determine the patrimonial benefits available under that particular regime before drafting pension relief.

A pension split in customary marriage proceedings involving a polygynous union requires further care. The court may need to consider existing marriages, applicable contracts or court orders, house property, family property and the legally recognised proprietary interests of other spouses. A two-party settlement should not purport to dispose of another spouse’s independent rights.

What is a pension interest at divorce?

“Pension interest” is a defined legal concept. It does not simply mean the current balance shown on a retirement-fund statement, and it does not cover every amount associated with retirement savings in the same way.

Sections 7(7) and 7(8) of the Divorce Act regulate the treatment and possible assignment of pension interest in divorce proceedings. Section 7(7) deals with pension interest as an asset when patrimonial benefits are determined. Section 7(8) of the Divorce Act permits the court, where the legal requirements are met, to assign a portion of one spouse’s pension interest to the other spouse and direct the relevant fund to give effect to the order.

Fund-specific legislation must also be considered. Funds registered under the Pension Funds Act may be governed differently from the Government Employees Pension Fund or another fund established under separate legislation. The correct statutory route therefore depends on the fund concerned.

Timing is significant. The attorney should determine whether the member remains an active member, has resigned, retired, withdrawn a benefit, transferred it or become entitled to a different form of benefit. Those events can change both the character of the asset and the form of relief that may be pursued.

The Supreme Court of Appeal’s decision in Eskom Pension and Provident Fund v Krugel illustrates the timing risk. The member had resigned before the divorce and had become a deferred pensioner. The court held that he no longer had a pension interest capable of being assigned through sections 7(7) and 7(8) in the manner contemplated by the divorce order.

That judgment must be applied with the current legislation and the rules governing the particular fund. If the member has resigned, retired or transferred benefits, current legal advice should be obtained before pleadings or settlement terms are finalised.

What evidence should be obtained?

A customary divorce pension fund claim should be investigated before the settlement agreement or particulars of claim are finalised. The documents required will depend on the dispute, but the following are usually relevant:

identity documents for the spouses;
the customary-marriage certificate, if available;
lobola agreements, correspondence, photographs and family-witness details where validity is disputed;
details of any other customary marriages involving the member spouse;
any antenuptial contract, section 7(6) contract or relevant court order;
the member’s latest benefit statement;
the fund’s full registered legal name;
the member’s full names, identity number and membership or pension number;
the fund administrator’s details;
confirmation of whether the member remains employed and actively contributing;
records of any resignation, retirement, withdrawal or transfer; and
relevant fund correspondence and benefit quotations.

A payslip or employer name is not necessarily enough to identify the fund. The employer, administrator and registered fund may be different entities. The court order should refer to the correct legal entity.

Where information is being withheld, formal disclosure or discovery may be required. Protective relief may also need to be considered if there is reliable evidence that a benefit is about to be paid or transferred. The appropriate procedure depends on the facts and the governing fund legislation.

Drafting an enforceable pension interest divorce order

A pension interest divorce order should do more than state that one spouse receives “half of the pension.” Vague language can leave the non-member spouse with an order that the fund cannot implement.

The pleading, settlement agreement and proposed order should be aligned. Depending on the fund and the relief sought, the documents should ordinarily identify:

the member spouse;
the fund by its full legal name;
the membership or pension number, where available;
the pension interest to which the order relates;
the percentage or portion assigned to the non-member spouse;
the statutory basis for the assignment;
the direction to the fund to deduct and pay the assigned portion as permitted by law; and
any lawful election available to the non-member spouse regarding payment or transfer.

Section 7(8) of the Divorce Act is not a substitute for first proving the spouse’s patrimonial entitlement. Correct fund wording makes an existing award implementable. It does not create a substantive right that the matrimonial property regime does not provide.

A pension interest divorce order should also avoid confusing the date of divorce, the valuation of pension interest and the later administrative payment process. After the decree is granted, a certified copy should be supplied to the correct fund or administrator. Receipt and implementation should be followed up promptly.

What if the customary marriage was not registered?

An unregistered customary marriage should not be treated as though it does not exist. The question is whether the requirements for a valid customary marriage were met. If validity is disputed, evidence may have to be placed before the court and declaratory relief may be necessary.

The marriage’s proprietary consequences must then be determined. Only after that can the attorney assess the pension claim and formulate appropriate relief.

Delaying this enquiry can create practical problems. The member may retire, resign or transfer benefits while the parties are still arguing about the existence or consequences of the marriage.

Polygynous customary marriages require a wider enquiry

A pension interest in customary divorce proceedings involving a polygynous marriage cannot safely be approached as a simple division between two people. The attorney should establish the dates and validity of all relevant marriages, identify any applicable contracts or court orders and consider whether another spouse has an affected proprietary interest.

The Recognition of Customary Marriages Act gives the divorce court powers concerning the division of assets and equitable orders in the context of polygynous marriages. The exercise remains fact-sensitive. The existence of more than one wife does not mean that each wife automatically receives a fixed share of the member’s pension interest.

Mistakes to avoid before settlement

The most common risks arise when parties settle before obtaining reliable fund information. They may name the employer instead of the fund, rely on an outdated statement, overlook a resignation or transfer, or sign wording that does not direct the fund to act.

Before agreeing to a pension split in customary marriage proceedings, the non-member spouse should confirm:

that the marriage and property regime have been correctly identified;
that all relevant spouses and proprietary interests have been considered;
that the member’s current fund status is known;
that the correct fund has been identified;
that the proposed percentage or amount reflects the intended settlement;
that the pension clause is consistent with the rest of the asset division; and
that the proposed order can be implemented under the legislation governing the fund.

General information about pension interest in a divorce may assist with the initial enquiry. The settlement and proposed order should, however, be reviewed against the facts of the particular customary marriage.

Pension interest and section 37C death benefits are different

A pension-interest claim arising from divorce should not be confused with the allocation of a death benefit. Section 37C of the Pension Funds Act applies when a member dies and regulates how the fund deals with the death benefit.

A surviving customary spouse may be relevant to that process, but the fund’s death-benefit allocation is not the same as dividing pension interest when a marriage is dissolved by divorce. Our article on section 37C death benefits and customary spouses explains that distinction.

When should legal advice be obtained?

Legal advice should be obtained before a settlement is signed or a divorce order is drafted. Early advice is especially important where the marriage is unregistered, another customary marriage may exist, the member is close to retirement, fund documents are being withheld or the fund’s identity is unclear.

The broader customary-divorce process also requires attention to the validity of the marriage, its property consequences and the relief to be claimed.

Vermeulen Attorneys can review the marriage documents, applicable property regime, retirement-fund records and proposed pension clause before the divorce is finalised.

Frequently asked questions

Can I claim pension interest in customary divorce if the marriage was not registered?

Possibly. Non-registration does not by itself invalidate a customary marriage. The spouse relying on the marriage may still need to prove its validity and establish the applicable property regime before pension relief can be considered.

Does every customary spouse receive half of the pension?

No. The outcome depends on the matrimonial property regime, the patrimonial claim, the fund and the member’s status. A forfeiture claim, settlement agreement or legally recognised interest of another spouse may also affect the result.

What happens if the fund is named incorrectly?

An incorrectly identified fund may refuse or be unable to implement the order. Correcting the order can require a further court application. The registered fund name and member details should therefore be confirmed before the decree is granted.

What must a pension interest divorce order contain?

The required wording depends on the fund and the relief granted. The order should accurately identify the member and fund, describe the assigned share and direct the fund to act in accordance with the applicable legislation. Generic wording should not be used without checking that it suits the particular fund.

What if the member resigns or retires before the divorce?

The available relief may change. The attorney should determine whether a pension interest still exists, whether a benefit has accrued or been paid, and whether relief must be pursued against the member rather than through a direct fund-payment order.

Is a death benefit treated as a pension interest?

No. A section 37C death benefit is allocated under a different legal process after the member’s death. It should not be treated as a pension split arising from divorce.

Should the fund be contacted before settlement?

Yes, where possible. The fund or administrator can confirm its registered name, membership details and administrative requirements. Legal advice is still required to determine entitlement and draft the court order.