Divorce and pensions – what South Africans need to know
A divorced person previously married in community of property can claim a share in the pension of their former spouse.
Wright-Rose Innes said that spouses have the right to enjoy the assets brought into and accumulated during a marriage in community of property. A deviation from this would be a denial by a spouse of this right.
However, a spouse may feel that it is unfair that a former spouse shares in their pension post-separation, especially if the former spouse did not share in the pension during the marriage.
Wright-Rose Innes looked at a recent Pretoria High Court which dealt with the issue.
The court dealt with a case where a wife in divorce proceedings said that her former husband forfeited his share in her pension post-divorce.
She said that the husband used her to provide for his children and squandered his own pension by resigning from his position.
However, the court found that the husband had used his pension to settle over R400,000 in debts of the joint estate.
It also said that the wife did not substantively prove misconduct on the part of the husband and that he would unduly benefit from sharing in his former wife’s pension.
In addition, the court looked at the length of the marriage and the overall conduct of the husband when making its decision.
It ruled that the wife must pay R1.2 million of her pension interest to her ex-husband at the date of divorce.
Therefore, although the courts may allow for the forfeiture of a share in the pension of a former spouse, they will not lightly override the patrimonial consequences of the marriage.
Moreover, the party requiring such forfeiture must prove the other party would unduly benefit if the share is not forfeited.
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