Divorce and pension

2017-01-11 06:01
Ilze Strydom

Ilze Strydom

Multimedia   ·   User Galleries   ·   News in Pictures Send us your pictures  ·  Send us your stories


I have been married for 20 years, but I am facing the possibility that I may get divorced soon. My husband has a good pension that we had planned to use for our retirement. I am worried that I will not be entitled to any share of that, should we get divorced, because we are married out of community of property with the accrual.


For purposes of divorce, the pension interest in a pension fund, provident fund and/or preservation fund is defined as the benefits to which a member would have been entitled in terms of the rules of such fund if his membership is terminated due to resignation, at the date of divorce. In layperson terms – it is the monies and interest accrued in the fund from the date of participation in the fund to the date of “deemed” resignation and as such will not include the entire amount that the fund would pay out to the member at eventual retirement.

The pension interest in a retirement annuity fund differs from that of the pension fund, provident fund and/or preservation fund. The pension interest in a retirement annuity is defined as the sum of the member’s contributions to the fund up to the date of divorce plus a total amount of simple annual interest on those contributions up to that date at the prescribed rate. As such, the value of a pension interest in a retirement annuity for purposes of divorce proceedings will be less than the actual fund value at the date of divorce.

There is a misconception that the pension interest for purposes of divorce is calculated from the date of marriage until the date of divorce, but this is not the case and parties should be wary of this when entering into marriage or divorce and consider addressing this in their ante-nuptial agreement should the default position not be appropriate.

In terms of the ability to share in the pension interest of a spouse at divorce, the current position in our law based on your situation is as follows:

Married out of community of property after 1984 and with the accrual – spouses can share in the pension interest to the extent that such is included in the calculation of accrual and provided the pension interest was not specifically excluded in the ante-nuptial contract.

Thus in your situation, your spouse’s pension interest will form part of the calculation of accrual at divorce unless the pension interest has been excluded in your ante-nuptial agreement.

  • Ilze Strydom, director, Phatshoane Henney Attorneys

Join the conversation!

24.com encourages commentary submitted via MyNews24. Contributions of 200 words or more will be considered for publication.

We reserve editorial discretion to decide what will be published.
Read our comments policy for guidelines on contributions.

Inside News24

Competition regulation for a growing and inclusive economy

ADVERTORIAL: The Competition Commission of South Africa is conducting advocacy work in the South African automotive aftermarket industry and has gazetted a Draft Code of Conduct for public comment.

Traffic Alerts
There are new stories on the homepage. Click here to see them.


Create Profile

Creating your profile will enable you to submit photos and stories to get published on News24.

Please provide a username for your profile page:

This username must be unique, cannot be edited and will be used in the URL to your profile page across the entire 24.com network.


Location Settings

News24 allows you to edit the display of certain components based on a location. If you wish to personalise the page based on your preferences, please select a location for each component and click "Submit" in order for the changes to take affect.

Facebook Sign-In

Hi News addict,

Join the News24 Community to be involved in breaking the news.

Log in with Facebook to comment and personalise news, weather and listings.