If you emigrate to another country and obtain a divorce there, you will have to apply to a South African court to have your divorce settlement recognised and enforced in this country, particularly if you want to claim a share in your former spouse’s retirement savings.
The Edgars were divorced on December 7, 2007 in Florida in the United States. The divorce settlement stated that “all accounts shall be changed from individual accounts to joint accounts and shall be equally owned by the parties”. The “accounts” named were seven Old Mutual retirement annuities (RAs) and one Momentum Life RA in the name of Mr Edgar and two RAs in the name of Mrs Edgar.
Mrs Edgar asked Elmarie de la Rey, the Acting Pension Funds Adjudicator, to order the Momentum RA Fund and its administrator, Momentum Group, and the South African RA Fund and its administrator, Old Mutual, to pay her share of the pension interest in terms of the court order.
The pension interest on an RA fund is the total of the amount contributed up to a certain date (in this case, the date of the divorce) plus the accumulated interest.
Old Mutual initially acknowledged that Mrs Edgar was entitled to a share of the pension interest in Mr Edgar’s RAs, but Momentum refused to acknowledge her claim.
In her ruling, De la Rey says that domicile plays an important role in deciding whether the judgment of a foreign court will be recognised in South Africa. In this case, both Mr and Mrs Edgar are domiciled in the US. “The common law procedure to have such a judgment recognised and enforced in South Africa is to bring an action in a South African court to make the foreign judgment its own,” she says.
Mrs Edgar did not apply to a South African court to have the US court order recognised and enforced in South Africa, and so the court order is unenforceable as it stands, De la Rey says.
She also points out that the settlement does not use the term “pension interest” but assigns half of the “maturity value” of the RAs to Mrs Edgar.
“It is clear from the definition of pension interest that a non-member spouse is only entitled to pension interest calculated as at the date of divorce, rather than on maturity. Therefore, the relevant clause in the settlement agreement does not meet the requirements of the Divorce Act and is unenforceable,” she says.
De la Rey dismissed Mrs Edgar’s complaint.