Forfeiture of pension benefit

When is a spouse not entitled to half a pension on divorce?

A recent case challenged the matrimonial property regime “out of community of property without accrual”, because on divorce a wife was unfairly denied a share of assets she had helped to accrue through her unpaid contribution to the household (raising children, building her husband’s reputation, etc.). The case established the precedent of considering these factors in divorce proceedings, rather than slavishly adhering to the terms of the antenuptial contract. However, fairness can work in the other direction too. When a couple marries in community of property, the joint marital estate is (theoretically) split equally on divorce, and this includes prospective pension benefit. In another recent case, the right of the husband to the wife’s pension benefit was challenged as “undue benefit”, due to his complete lack of financial contribution to the marriage, despite being fit and able to work. Infidelity and a lack of interest in the marriage were also cited as motivations for the forfeiture of pension benefit.

Pension benefit explained

Pension benefit refers to any occupational or private pension (such as a retirement annuity) a person may have. In divorce matters, the term “pension interest” is usually referred to, in recognition of the fact that the divorcing spouses may be below pensionable age and so the pension is not yet providing a financial benefit. Pension interest refers to the fund benefit at time of divorce and the entitlement of the non-member to a portion of that fund. The pension is considered part of an individual’s assets, and therefore in marriage in community of property part of the joint estate. The court granting the divorce decree can order that “any part of the pension interest of that member…shall be paid by that fund to that other party when any pension benefits accrue in respect of that member” (per the Divorce Amendment Act 7 of 1989). The award to the non-member spouse of the member spouse’s “pension interest” is calculated at the date of the divorce, but is paid at a date in the future when the pension benefit accrues to the member spouse. However, the non-member spouse may also take the pension interest allocation as a lump sum in cash at the date of divorce, known as the clean-break principle.

Forfeiture of benefit

There are times when a marital estate is not divided equally on divorce, even if the marriage is in community of property. The Divorce Act 70 of 1979 allows that “the Court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part, if the Court, having regard to the duration of the marriage, the circumstances which gave rise to the breakdown thereof and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefited.” In other words, the law assumes both parties to a marriage will make an effort to behave reasonably and it makes allowance for one party not to be penalised if the other’s behaviour is unreasonable and inequitable. What does this mean in practice? It may mean a spouse is not awarded requested maintenance, or is denied their share of pension interest. A recent case provides an illustration.

The case of NAM vs. MSM

In this case, the husband and wife married in 2017 and lived with the husband’s family, where they had cohabited prior to the marriage. The wife, who was the plaintiff in the case, has been consistently employed by SAPS, whereas the husband, the defendant, has been unemployed other than occasional casual work. The couple married in community of property. When the relationship broke down, the wife initiated divorce proceedings. She did not dispute the division of the joint estate but sought an order for her husband to forfeit the 50% share of her SAPS pension fund.

She claimed her husband did not contribute to the growth of the joint estate, and never had a fixed income or permanent employment. He failed or refused to support their minor daughter financially or contribute to household costs and refused to look for work. The breakdown of the marriage was triggered by fights over her attempts to help him seek employment. Furthermore, the wife experienced verbal abuse and physical assault. She did not report the violence to the police out of embarrassment, as she is a police officer herself. On top of all this, the wife alleged that the defendant had extramarital affairs.

Undue benefit

In the wife’s view, her husband would enjoy an “undue benefit” which he did not deserve if he were granted half of her pension interest. Although the husband tried to besmirch his wife’s reputation in court, accusing her of drunken behaviour and failing to look after their child, evidence to back up these claims was not forthcoming. The judge felt the husband did not make a favourable impression in the witness box and was evasive. Although he testified that his wife had a problem with alcohol abuse, he was satisfied that she be awarded primary care of the child and did not contest custody arrangements, which cast doubt on the veracity of his testimony.

The court ruled, after carefully considering the facts, including the duration of the marriage, that the husband would unduly benefit from his wife’s pension fund if the forfeiture were not made an order of court. The court also decided he is not entitled to any spousal maintenance. A decree of divorce was granted, with division of the joint estate. But the husband was ordered to forfeit his 50% share in the pension fund, which would otherwise have been included in the joint estate.

Cape Town family lawyer can help

SD Law is a firm of attorneys in Cape Town. We’ll help you negotiate a divorce that is fair, right for your family and secures your future. We will protect your interests and ensure a fair division of property and assets, with or without forfeiture of benefits, as appropriate, and we will do so with sensitivity and compassion. Call Simon now on +27 (0) 86 099 5146 or email  sdippenaar@sdlaw.co.za.

Further reading:

• Divorce and the negotiation for pension benefits
• Divorce and pension sharing
• Divorced in community of property – forfeiture of benefits

Simon Dippenaar

http://www.sdlaw.co.za

Cape Town attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

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