Presentation name - Institute of Retirement Funds

Section 37D : Proposed
Amendments relating to Divorce
Nancy Andrews
19 August 2013
Divorce Act
“Pension interest” in relation to pension or provident
funds, is defined as :
“the benefits to which the member would have been
entitled to 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”
Requirements for a valid divorce order
Pre 13.09.2007 (stringent)
− Fund must be named
− Amount of pension interest must be
− Fund records must be endorsed
− Fund must ordered to pay pension interest
Post 13.09.2007 (less stringent i.t.o. section 37D)
− Fund must be named or identifiable
− Amount of pension interest must be clearly
Proposed amendments to section 37D
Reads as follows:
“That a non-member spouse in divorce proceedings
may have a claim on the capital value of a
pensioner’s pension after retirement and on a
deferred pensioner’s benefit in a fund.”
Where do we see the problem???
• Pension interest is specifically defined in the Divorce
Act - does not include a benefit following the member’s
exit from the Fund
• Supported by the judgments in the following cases:
 AJ Mcintosh v CJM Mcintosh, Sentinel Mining Industry
Retirement Fund and the Mine Employees Pension Fund (HC)
 Eskom Pension and Provident Fund v EM Krugel
 and EM De la Rey N.O. (SCA)
 BA Williams v Alexander Forbes Retirement Fund (PFA)
Things to consider and appropriate
Questions :
• Is the proposed amendment in line with equality and
• Can Funds give effect to this, if the legislation is
promulgated as it stands?
• Are there implications for Funds, if the proposed
amendments are passed?
Solution: Do we just change the definition of
pension interest in the Divorce Act? Is this

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