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REPUBLIC OF SOUTH AFRICA
DIVISION OF RETIREMENT FUND BENEFITS ON DIVORCE ACT
--------------------------------
(As introduced)
---------------------------------
(MINISTER OF ......................)
[B - 98]
_____________________________________________________________________
REPUBLIEK VAN SUID-AFRIKA
.............................................
WETSONTWERP
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(Soos ingedien)
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(MINISTER VAN ......................)
[B - 98]
010398DE
GENERAL EXPLANATORY NOTE:
[ ] Words in bold type in square brackets indicate omissions from existing enactments.
___________ Words underlined with a solid line indicate insertions in existing enactments.
___________________________________________
B I L L
To provide for the division of retirement fund benefits on the divorce of spouses; and to provide for matters related thereto.
BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:—
Definitions
1. In this Act, unless the context otherwise indicates—
(i) "beneficiary" means a person who is entitled or may become entitled to receive benefits from a retirement fund on the death of a member in terms of the rules of the fund;
(ii) "defined benefit scheme" in relation to a retirement fund means a scheme which is not a defined contribution scheme;
(iii) "defined contribution scheme" in relation to a retirement fund means a scheme under which the retirement benefits payable thereunder are based solely on—
(a) contributions made by or for the benefit of a member;
(b) investment returns on such contributions; and
(c) any surplus allocated to a member;
(iv) "divorce" includes the dissolution of a marriage in accordance with recognised customary or religious law;
(v) "marriage" includes a union or relationship between a man and a woman that is recognised as a marriage in accordance with customary law or any recognised religion;
(vi) "matured" in relation to retirement fund benefits means benefits that, at the date of divorce, have become payable to a member on his or her retirement or permanent disability in terms of the rules of the fund;
(vii) "member" means a member of a retirement fund;
(viii) "non-member spouse" means the spouse of a member, irrespective of whether that spouse is also a member of the same or any other retirement fund;
(ix) "pensionable service" in relation to retirement fund benefits in respect of a member means the period during which such benefit was earned by the member;
(x) "retirement fund" means—
(a) any pension fund organisation registered under the Pension Funds Act, 1956 (Act No. 24 of 1956); or
(b) any retirement fund or retirement scheme established by law; or
(c) any retirement fund or retirement scheme established in terms of an industrial agreement under the Labour Relations Act, 1995 (Act No. 66 of 1995);
(xi) "retirement fund benefit" means any benefit payable in terms of the rules of a retirement fund on the occurrence of a specified event;
(xii) "spouse" means a partner in a marriage and includes a divorced spouse;
(xiii) "unmatured" in relation to retirement fund benefits means that the stage where such benefits become payable to a member or a beneficiary in terms of the rules of a fund has not been reached.
Sharing of retirement fund benefits on divorce
2. (1) If the marriage of a member and his or her spouse is dissolved by divorce, the non-member spouse is, in accordance with the provisions of this Act, entitled to share in the retirement fund benefits which accumulated in respect of the member during the subsistence of the marriage.
(2) Spouses may in their antenuptial contract explicitly exclude the sharing of retirement fund benefits between them in the event of their divorce.
(3) A spouse may in writing waive any right he or she may have to share in the retirement fund benefits of the other spouse in terms of the provisions of this Act.
(4) Spouses may by written agreement between them make provision for the settlement of other assets on a spouse in lieu of that spouse's share or right to a share of the other spouse's retirement fund benefits.
Division of unmatured retirement fund benefits in defined contribution scheme
3. (1) If a retirement fund benefit which is to be divided between spouses on their divorce is unmatured and is embodied in a defined contribution scheme, the non-member spouse's share of the said benefit shall be equal to one half of—
(a) the total of all contributions made to the fund by or for the benefit of the member from the date of his or her marriage to the non-member spouse; plus
(b) the net investment returns allocated or to be allocated in respect of those contributions up to the date of the divorce; plus
(c) any surplus allocated by the fund to the member during the said period.
(2) The administrator of the member's retirement fund must upon receiving notice in the prescribed form that a division of the member's retirement fund benefits is to be effected at the date of the divorce of the spouses, effect a splitting of the member's account balance as at the said date and open a separate account for the benefit of the non-member spouse in respect of his or her share of the member's retirement fund benefits as determined in accordance with subsection (1). The balance in the separate account earns investment returns as if the non-member spouse became a member of the retirement fund concerned.
(3) After the splitting of retirement fund benefits as contemplated in this section, the rules of the retirement fund concerned shall apply to the non-member spouse's share as if he or she is the member with regard to such share: Provided that—
(a) the stage where benefits become payable and the form in which benefits may be paid shall be subject to the rules which would have applied if no splitting of benefits had been effected; and
(b) the non-member spouse's entitlement to his or her share of the benefits shall, in proportion to their effect on the member's share of the benefits, be subject to any rules of the fund pertaining to the vesting of benefits in accordance with the member's period of service or membership of the fund.
(4) The said administrator may, with the written consent of the non-member spouse, and must if requested thereto in writing by the non-member spouse, transfer the non-member spouse's share of the retirement fund benefits as determined in accordance with subsection (1), to another fund for the benefit of the non-member spouse: Provided that the transfer of the said benefits shall not take place before the benefits have become fully vested as contemplated in subsection (3).
Division of unmatured retirement fund benefits in defined benefit scheme
4. (1) If a retirement fund benefit which is to be divided between spouses on their divorce is unmatured and is embodied in a defined benefit scheme the non-member spouse shall, on the date when the benefit becomes payable under the rules of the fund, be entitled—
(a) in the case of a benefit which accrues to the member as a result of his or her resignation, dismissal or the dissolution of the fund, to the proportion of such benefits determined in accordance with the following formula:
A
½ —
B
where—
A = the period of pensionable service accumulated by the member during the subsistence of his or her marriage to the non-member spouse; and
B = the total period of pensionable service accumulated by the member;
(b) in the case of a benefit which becomes payable in any other circumstances, to a benefit the value of which shall be determined in accordance with the following formula:
A
½ — X C
B
where—
A = the period of pensionable service accumulated by the member during the subsistence of his or her marriage to the non-member spouse;
B = the total period of pensionable service accumulated by the member; and
C = the actuarial liability of the fund in respect of the member on the day preceding the day on which the benefit becomes matured as calculated by the actuary of the fund concerned: Provided that where such benefit is payable by way of periodic payments the benefit as determined above shall take the form of an annuity payable during the lifetime of the non-member spouse, as calculated by the actuary of the fund concerned.
(2) In the event where the retirement fund benefit contemplated in subsection (1) is superseded by an alternative benefit on account of the death of the member (other than a benefit payable to a member's dependant child), the non-member spouse shall be entitled to a proportion of the said benefit determined in accordance with the formula contemplated in the said subsection.
(3) The administrator of the member's retirement fund must, if notified in the prescribed form of a non-member spouse's right to a share of the member's retirement fund benefits, pay to the non-member spouse his or her share of those benefits direct from the fund when the said benefits become payable.
(4) If the non-member spouse dies before the date on which his or her share of the member's retirement fund benefits become payable, the non-member spouse's estate shall have a claim against the administrator of the member's retirement fund in respect of such share of those benefits when they become payable.
Division of matured retirement fund benefits
5. (1) If matured retirement fund benefits must be divided between a member and his or her spouse on their divorce, the share of those benefits to which the non-member spouse shall be entitled must be determined in accordance with the following formula:
A
½ — X C
B
where -
A = the period of pensionable service accumulated by the member during the subsistence of his or her marriage to the non-member spouse;
B = the total period of pensionable service accumulated by the member; and
C = the amount of the said retirement fund benefits.
(2) The provisions of section 4(2) and (3) shall, with the necessary changes, apply in respect of a non-member spouse's share of a matured retirement fund benefits as determined in accordance with this section.
Proof of date of commencement and dissolution of certain marraiges
6. Whenever the date of the commencement of a marriage concluded otherwise than in accordance with the Marriage Act, 1961 (Act No. 25 of 1961), or the date of the dissolution of a marriage dissolved otherwise than by a decree of divorce granted by a competent court is relevant for purposes of this Act and such date is in dispute between the parties concerned, the said date may be proved by a certificate issued by a magistrate after he or she has satisfied himself or herself as to the true date of the marriage or the dissolution of the marriage, as the case may be.
Regulations
7. The Minister may make regulations prescribing—
(a) the form in which an administrator of a retirement fund must be notified of any division of retirement fund benefits of a member;
(b) the apportionment of the costs relating to the division of retirement fund benefits; and
(c) any other matter that may or must be regulated in order to give effect to principles underlying the provisions of this Act.
Amendment of section 37A of Act 24 of 1956
8. Section 37A of the Pension Funds Act, 1956 (Act No. 24 of 1956), is hereby amended by substituting the following for subsection (1):
"(1) Save to the extent permitted by this Act, the Income Tax Act, 1962 (Act No. 58 of 1962), [and] the Maintenance Act, 1963 (Act No. 23 of 1963), and the Division of Retirement Fund Benefits on Divorce Act, 19...., no benefit provided for in the rules of a registered fund (including an annuity purchased or to be purchased by the said fund from an insurer for a member), or right to such benefit, or right in respect of contributions made by or on behalf of a member, shall not withstanding anything to the contrary to contained in the rules of such a fund, be capable to being reduced, transferred or otherwise ceded, or of being pledged or hypothecated, or be liable to be attached or subjected to any form execution under judgment or order of a court of law, or to the extent of not more than three thousand rand per annum, be capable of being taken into account in a determination of a judgment debtor's financial position in terms of section 65 of the Magistrates' Court Act, 1944 (Act No. 32 of 1944), and in the event of the member or beneficiary concerned attempting to transfer or otherwise cede, or to pledge or hypothecate, such benefit or right, the fund concerned may withhold or suspend payment thereof: Provided that the fund may pay any such benefit or any benefit in pursuance of such contributions, or part thereof, to any one or more of the dependants of the member or beneficiary or to a guardian or trustee for the benefit of such dependant or dependants during such period as it may determine."
Amendment of section 1 of Act 70 of 1979
9. Section 1 of the Divorce Act, 1979 (Act No. 70 of 1979), is hereby amended by deleting the definitions of "pension fund", "pension interest" and "rules".
Amendment of section 7 of Act 70 of 1979
10. Section 7 of the Divorce Act 1979, is hereby amended—
(a) by substituting the following for paragraph (a) of subsection (7):
"(a) In the determination of the patrimonial benefits to which the parties to a divorce may be entitled, the [pension interest of a party shall, subjected to paragraphs (b) and (c), be deemed to be part of his assets] rights to which a party may be entitled under the provisions of the Division of Retirement Fund Benefits on Divorce Act, 19...., must be taken into account.";
(b) by deleting paragraph (b) and (c) of subsection (7); and
(c) by deleting subsection (8).
Amendment of sections 5 of Act 88 of 1984
11. Section 5 of the Matrimonial Property Act, 1984 (Act No. 88 of 1984), is hereby amended by the addition of the following subsection:
"(3) (a) No benefit paid to or which is being received by a member of a retirement fund or any other asset which the member acquires by virtue of his or her possession or former possession of such benefit, and no right which such a member has to the payment of retirement fund benefits in the future, shall for purposes of determining the accrual of that member's estate upon divorce, form part of the said member's estate.
(b) No right which the spouse of a member of a retirement fund may have in terms of the Retirement Fund Benefits Act, 19..., or any other law to a share of the member's retirement fund benefits and no part of such benefits which has been or is being paid to such spouse shall for purpose of determining the accrual of the estate of such spouse on divorce, form part of his or her estate.".
Application of Act
12. (1) Any right which a party to a divorce action instituted before the commencement of this Act may have in respect of the retirement fund benefits of the other party to such action must be determined as if this Act had not been adopted.
(2) Spouses married before the commencement of this Act, but after 1 November 1984, and who have in terms of their antenuptial contract excluded community of property, community of profit and loss and the accrual system in respect of their marriage shall for purposes of section 2(2) be deemed to have explicitly excluded the sharing of retirement fund benefits in accordance with the provisions of this Act, unless they have by written agreement between them elected to make the said provisions applicable to them in the event of their divorce.
Short title and commencement
13. This Act shall be called the Division of Retirement Fund Benefits on Divorce Act, 19.., and shall commence on a date fixed in the Gazette by the President.
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