Non-member former spouses cannot be excluded from a share of a retirement benefit because they had an Islamic marriage.
Acting Pension Funds Adjudicator Elmarie de la Rey has determined that Tanya Tryon is entitled to an agreed share of the retirement savings of her former husband even though she was married 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 determination is against the Nedgroup Defined Contribution Pension and Provident Fund and Old Mutual Life Assurance Company, which administered the fund.
According to the determination, the marriage between the complainant and the member was dissolved on September 21, 2007 in terms of the tenets of Islam. The dissolution of the marriage and the settlement agreement between the parties was made an order of the South Gauteng High Court in Johannesburg on September 21, 2011.
In terms of the settlement, Tryon was entitled to 50 percent of the value of the fund, calculated from the date of inception, to September 2007, being the date of the fasakh (ending of the Islamic marriage).
The member, MS Wade, was to take all reasonable steps to ensure that the complainant received payment and would be responsible for the sum if the fund refused payment.
The fund refused to pay.
After Tryon complained, Old Mutual filed a response on behalf of itself and the fund in which the respondents objected to the jurisdiction of the adjudicator, alleging that the complaint was not a “complaint” as defined in the Pension Funds Act and that the complainant was not a “complainant” as defined in the Act.
Old Mutual submitted that the divorce order presented to the first respondent did not constitute a divorce order in terms of the Divorce Act and the Pension Funds Act, which meant the fund could not pay up the agreed amount.
The Divorce Act provides that a member’s pension interest forms part of the member’s assets in a marriage only if the parties were married in community of property, married with the accrual system, or married before 1984 in terms of an ante-nuptial contract without the accrual system. The complainant and the member were not married in terms of any of these regimes, so the pension interest was not part of his estate assets, Old Mutual and the fund claimed.
In her ruling, De la Rey said Tryon qualified as a “complainant” because she claimed payment of a pension interest from the first respondent, which it refused to pay. Therefore, she was considered a potential beneficiary of the first respondent and a person who had an interest in the resolution of the complaint.
“The primary complaint issue is whether or not the first respondent’s refusal to pay pension interest to the complainant is sanctioned by the law and the rules of the first respondent.”
De la Rey rejected Old Mutual’s submission that the divorce order was unenforceable against the fund.
She says the courts held that the word “spouse” in its ordinary meaning included parties to a Muslim marriage.
“This tribunal is satisfied that the complainant should be considered as a spouse for the purposes of pension interest payable by the first respondent.”
De la Rey ordered the fund and Old Mutual to pay Tryon her share of the pension interest as provided for in the settlement.