THE SHARING OF PENSION BENEFITS ON DIVORCE: AN INEVITABLE AFFAIR?

Abstract

One of the invariable consequences of divorce is that the patrimonial assets of the marriage have to be divided up between the two parties. At a primary level, the way in which this will occur will be determined by a number of factors: the matrimonial property regime under which the parties had been married; the relevant provisions of the Divorce Act (70 of 1979) that deal with the question of the patrimonial consequences of divorce; as well as any agreement on this often ticklish matter that can be reached by the parties
prior to the divorce action. Approximately fourteen years ago, section 7 of the Divorce Act was amended to allow a divorced spouse to share in the pension interests of the other spouse. There is some polemic, though, as to the interpretation of this provision: in particular, it is not clear whether this pension benefit will automatically form part of the assets that are susceptible to division, or whether a prayer to this effect must specifically be sought. After a consideration of the current legal position regarding the sharing of
pension benefits generally, this note will examine this specific debate.