Answer to a question from a reader

How can I ensure that my provident fund payment is divided equally between me and my seven children?

The short answer

You and the mother/s will need a court order to compel the fund to do this.

The whole question

Dear Athalie

I submitted my provident fund claim form in March this year after resigning in February. I was told that there is a delay in payment because the fund needs a letter from the maintenance court for one of my children that I'm obliged to pay maintenance for. I would like to nominate all seven of my children to have a share in the provident fund payment equal to my own share.

The long answer

The way provident funds work is that the fund is not allowed to make deductions from the lump sum payment when a member resigns or retires, unless there is a court order instructing the fund to keep back or retain a portion of the payment. The fund does not have the power to divide the payment between you and your seven children equally. There has to be a court order to compel the fund to withhold the benefit to satisfy a maintenance order. The amount that needs to be paid must be clearly stated in the court order and it must state whether it is for arrears or future maintenance. 

The court can make an order for regular future payments from the provident fund for as long as the child or children are in need of maintenance. The provident fund must then hold back enough of the payment to direct towards the maintenance of the children under Section 26(4) of the Maintenance Act for as long as the children are in need of such maintenance. 

Oupa Segalwe, acting spokesman for the Public Protector’s office, told the Sowetan in 2019 that for a parent to claim maintenance from the other parent’s retirement fund, the fund member must ideally have left their employment and their pension or provident fund and must be due to receive a payment from their fund. 

A court order is only binding on a fund if the fund is clearly identified by name. If the mothers don’t know the name of the fund their children’s father belongs to, they should approach the employer or administrator and explain that they are seeking a maintenance order. The maintenance court will then serve the papers on the fund on behalf of the mother.

Naleen Jeram of Momentum Corporate says that even if the father is up to date with payments, but the mother suspects that the payments may stop because the father has resigned from his job, she can approach the maintenance court for future maintenance. A mother who has not yet obtained a court order can apply for an interdict to stop the fund from paying out any money until the maintenance inquiry is finalised. The magistrate can make an order for monthly payments or a lump sum.

Clement Marumoagae, a senior lecturer in law at the University of the Witwatersrand says that, “Lump sum payments may not be in the best interest of the child, who is in need of parental care and support, because of the potential abuse of such funds in a short period of time. There might be a need to interdict the provident fund in order to prevent it from making payment to its member when there is a need for such a member to satisfy future child maintenance obligations.” 

So, it seems that the only way to guarantee that your seven children receive maintenance payments from your provident fund is through the mother/s obtaining court orders.

You could go to the maintenance court together with the mother, taking a certified copy of your ID plus certified copies of the children’s birth certificates plus any affidavits confirming that you pay regular instalments of money to maintain the other six children, besides the one with the court order. You could tell the court that you are not seeking to evade payment but were trying to make sure that your children were maintained by dividing your provident fund payment between them and yourself equally. Hopefully, you could come to an agreement on the amount/s of the order to be made against the provident fund payment.

Wishing you the best,

Answered on July 22, 2021, 11:27 a.m.

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