A client asked:
I would like
some advice please. My partner and I were living together for 5 to 6 years then
broke up in February 2018 because he was cheating on me. We have 2 children
together which he paid R1000 Maintenance for a month. Last week he let me know
that he lost his job and I would like to know how can I get some of his
Provident fund money to go to my kids? Even if it’s invested into an
Educational Fund that will be fine.
The one
problem is we were not married...what are my rights as a mother?
Answer:
Unfortunately,
as you were never married, there has not been a dissolution of the marriage so
there is no automatic claim on his pension fund. However, you can obtain a
maintenance order for the children. The
court will consider the needs of the child and the father’s ability to
contribute. Once
you have this order you can attach his provident fund benefits to cover area and
(possibly) future maintenance.
The Maintenance Act and the
Pension Funds Act give a retirement fund the right to withhold or deduct
amounts from pension benefits to pay maintenance to a child, and this grants you
a mechanism to apply to court to enforce a maintenance order.
The fund cannot make any deductions for
outstanding maintenance payments until the husband’s benefit in the fund
accrues. As he has lost his job, the fund will pay out a retirement or
withdrawal benefit. Once the retirement benefit has been paid to the member,
the benefit is no longer in the hands of the pension fund and you cannot attach
the benefit. Therefore, if you know that a defaulting parent is, for example,
going to leave his fund, you should ask the fund to withhold his or her benefit
while you finalise a claim for arrear maintenance.
In Mngadi v Beacon Sweets and Chocolates
Provident Fund, the father was a member of the Beacon Sweets and Chocolates
Provident Fund. He had resigned to avoid paying maintenance and planned to
withdraw his benefit, the court heard. The court ruled the fund could be
interdicted from paying the benefit to the member for as long as the member was
liable for maintenance, and it ordered the fund to deduct from the benefit the
maintenance due each month.
The
court said that once the maintenance was no longer due – for example, when the
children reached the age of majority – the member could be paid the remaining
benefit.
