The short answer
Possibly, but she should definitely get legal advice.
The whole question
A husband deliberately lied to his employers that he didn't know the whereabouts of his wife so that he could collect all his pension money. He then left his wife and moved back in with his parents. Now, 21 years later, he wants to claim his share of his wife's pension money. How can she protect herself and her son?
The long answer
If they were married in community of property, everything they owned and everything they owed would be part of their joint estate. If they got divorced, the joint estate would come to an end and each ex-spouse would be entitled to 50% of the estate. It is now law that both their pension funds would form part of their joint estate and the non-member spouse would be entitled to claim 50% of the member spouse’s pension fund interest.
According to the Pension Funds Act, “pension fund interest” is the benefit that a member would be entitled to in terms of the rules of the fund if she or he resigned from the fund on the date of the divorce.
Section 7(8) of the Divorce Act allows the court that grants the divorce order to make an order awarding a specific portion of the ex-spouse’s pension or provident fund to the non-member spouse and orders the specific pension fund to pay out this amount to the non-member ex-spouse. The fund usually has 45 days to ask the non-member spouse to decide if they want to be paid in cash or to invest in a fund, and the non-member spouse has 120 days to make the decision.
The Supreme Court of Appeal found in 2016 that it is possible for a divorced spouse who did not claim pension interest during the divorce to go back to the court and ask for an order to claim the pension interest even when the joint estate has already been divided.
What is not clear from your email is whether they actually got divorced, or if they just stopped living together when he got his pension money and went to live with his parents.
In a 2014 article in Scielo, law professor M.C. Morumoagae says, “Most funds maintain that if a member spouse withdraws from the fund before the divorce there can no longer be any ‘pension interest’ or accrued benefit.”
So, it would seem that if the husband simply used the pension money up and there was no divorce, there is very little the wife can do about it now.
Mr Morumoagae goes on to point out in his article that it does not seem fair that a spouse who received his pension benefits during the marriage and did not share them with his wife should be able to claim 50% of her pension when they divorce, as he would be entitled to do in terms of Section 7(8) of the Divorce Act and Section 37D(4)(a) of the Pension Fund Act. (These are the laws which enable a court to make a divorce order instructing the specific fund to pay a portion of the pension interest to the ex-spouse.)
Equity, or being fair, in other words, is an important requirement in the law. The courts have to take equity into account in any order they make. If he did not share his pension money with her, it would not be equitable or just for her to have to share her pension money with him 21 years later.
Perhaps the best advice is for the wife to seek legal advice on how to protect her pension from the husband (or ex-husband).
She could contact Legal Aid, which is a means-tested government organisation that must help people who can’t afford a lawyer:
Legal Aid Advice Line (Toll-free): 0800 110 110
Please-Call-Me number: 079 835 7179
Tel: 0800 110 110 (Mon to Fri 8am – 4pm)
079 835 7179 (Please Call Me)
She could also ask the Black Sash for free paralegal advice. Their contact details are:
Helpline: 072 663 3739 / 063 610 1865
Wishing you the best,
Answered on May 16, 2022, 7:15 p.m.
Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.