16 March 2012
A spouse in an Islamic marriage is entitled to a share of the partner's pension fund after an Islamic divorce, the Pension Funds Adjudicator (PFA) has said.
Legal experts in South Africa are describing it as a "groundbreaking determination" and say that it is "likely to be studied" in South African divorce law regarding the interaction between Islamic family law and legal entitlements.
The ruling came after Tanya Yasmine Tryon complained that Nedgroup failed to pay the pension interest allocated to her in terms of a divorce order.
"Since the complainant was married to the fund member according to the tenets of the Islamic religion, and that their marriage, although not registered as a civil marriage, was dissolved according to the tenets of the religion, the complainant had every right to be considered as a spouse for the purposes of payment of pension interest," said acting adjudicator Elmarie de la Rey this week.
In terms of the settlement agreement, Tryon was entitled to 50 percent of the value of the pension fund, calculated from the date of inception, to September 21, 2007, being the date of the Islamic divorce.
However, Nedgroup and its administrator, Old Mutual Life Assurance Company, refused to pay.
They submitted that Section 7 of the Divorce Act provided that a member's pension interest would only form part of the member's assets in the marriage if the parties were married in community of property, married with the accrual system or married pre-1984 in terms of an antenuptial contract without the accrual system.
They argued that Tryon and her former husband, who is the member of the pension fund, were not married in terms of any of these regimes, so the pension interest was not part of his estate's assets.
However, on Wednesday, De la Rey said the Pension Funds Adjudicator tribunal was satisfied that Tryon should be considered as a spouse for the purposes of pension interest payable by Nedgroup.
"This much was also confirmed by the high court when it made its order regarding pension interest on September 21, 2011," she said.
"The definition of spouse in section one of the act also accords with this tribunal's interpretation."
The pension companies were ordered to pay Tryon her share of pension interest.
"Islamic spouse 'entitled to pension; " IOL Daily News March 16, 2012
"A spouse in Islamic marriage is entitled to share of pension upon divorce, PFA rules " Cover March 14, 2012