Party
married according to Islamic law entitled to share of spouse’s pension
The
Office of the Pension Funds Adjudicator has reiterated it will not discriminate
against parties married under the terms of Islamic law.
This
position was made clear by Muvhango Lukhaimane in a determination in which she
ordered Sanlam's Staff Umbrella Pension Fund to reverse its earlier decision
not to pay a complainant, Ms Z Paulse, a 50% share of the pension interest in a
divorce settlement. Sanlam Staff Umbrella Pension Fund (first
respondent) and its administrator, Sanlam Life Insurance Limited (second
respondent), submitted that the parties were not married in terms of the
Marriage Act, the Recognition of Customary Marriages Act or the Civil Union
Act, but in terms of the tenets of the Islamic religion. They
claimed the Divorce Act was not applicable to the dissolution of the marriage
as it had to be dissolved in terms of the tenets of the Islamic
religion. But, a decree of divorce as contemplated in terms of the Divorce
Act was not possible, since there was no marriage as contemplated in terms of
the Divorce Act. In her determination, Lukhaimane said that prior to
28 February 2014, parties who divorced after having married in terms of the
Islamic religion confront a challenge when a non-member spouse intends to claim
pension interest held by a fund in respect of the member spouse. The
first respondent was ordered to compute and pay the complainant her share of
pension interest as provided in the divorce settlement agreement.
