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 ascertainable − 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 ascertainable 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 solutions!!! Questions : • Is the proposed amendment in line with equality and fairness? • 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 enough? QUESTIONS???