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SUMMARY OF RECOMMENDATIONS

The sharing of retirement fund benefits between spouses on divorce must be governed by substantive legislation separate from the Divorce Act,1979.

Provision should be made for the division of retirement benefits as such and not merely for the exchange of compensatory assets in place of such benefits.

The exchange of compensatory assets in place of a share of retirement fund benefits should nevertheless remain as an option available to the spouses.

Spouses may exclude pension sharing in terms of their antenuptial contract.

A spouse may waive any right to retirement fund benefits.

Spouses may agree in writing to share retirement fund benefits in different proportions than those prescribed.

Subject to the principles contained in the proposed legislation, a retirement fund may make use of approximate calculations where exact data is not obtainable.

The costs that are recoverable from spouses in respect of the division of benefits may be prescribed by regulation.

The non-member spouse has a right to a share of the retirement fund benefits which accumulated in respect of the member during the marriage. The extent of the right is prescribed in the formulae set out in the proposed legislation in respect of the various types of retirement schemes.

Any share of retirement fund benefits to which a non-member spouse is entitled is made available on a locked-in basis - in other words, by way of deferred pension and not as a cash benefit.

Benefits to which a non-member spouse is entitled must be paid to him or her direct from the retirement fund by which the benefits are held on behalf of the non-member spouse.

If the non-member spouse dies before the date on which the benefits become payable to the member, the withdrawal value of the benefits on the date of the death of the non-member spouse is payable to his or her estate.

The sharing of retirement fund benefits is at this stage limited to spouses whose marriages are recognized as such in terms of existing law.

The proposed legislation should make it clear that retirement fund benefits are not divided as part of the matrimonial property of spouses.

The proposed legislation should be applicable in respect of marriages dissolved after the commencement of the new provisions.

The new provisions should not apply in respect of spouses who have in terms of their antenuptial contract chosen complete separation of their property, but such spouses should be allowed to make the said provisions applicable to them by way of written contract.