My husband obtained a preservation fund after I signed divorce papers. Ought to I sue him?

To reply your query, it’s paramount that you simply perceive your rights at divorce based mostly in your marital regime and pay attention to sure acts which might be relevant to your particular scenario. In terms of your divorce order, it’s prudent to know Part 7(7) & (8) of the Divorce Act, 1979 (Act No 70 of 1979) in addition to Part 37D of the Pension Funds Act.

When it comes to the Divorce Act, Part 7(7)(a) deems {that a} member partner’s pension curiosity ought to kind a part of their property on divorce and, in flip, Part 7(8) determines {that a} courtroom could order {that a} portion of the “pension curiosity” of a member of a fund be awarded to the partner of such member.

A scenario the place an award by way of Part 7(8) won’t be doable is the place the divorce motion is in respect of a wedding out of neighborhood of property entered into on or after November 1, 1984, and by way of which the ante-nuptial contract excludes neighborhood of property, neighborhood of revenue and loss and the accrual system.

A “pension curiosity” in respect of a member of a pension fund is outlined as referring to the advantages to which such member would have been entitled by way of the foundations of the fund if their membership of the fund would have been terminated on the date of the divorce on account of their resignation from their workplace, i.e. the member partner should nonetheless maintain a pension curiosity within the fund as on the date of divorce. The place the member belonged to a retirement annuity fund, “pension curiosity” refers back to the whole quantity of the member’s contributions to the fund as much as the date of the divorce, along with a complete quantity of annual easy curiosity on these contributions as much as that date.

Lastly, the Pension Funds Act by means of Part 37D permits for the fund to pay a non-member partner any portion of the member partner’s curiosity within the fund as decided by a courtroom order granted by way of Part 7(8) of the Divorce Act.

In your query, you point out that no award was made to your husband’s curiosity in his retirement fund. It subsequently follows that you simply can’t declare a portion of his pension curiosity except an modification is made to the divorce order to instruct the retirement fund to make such award.

What complicates issues additional is that seemingly your ex-husband has moved his retirement fund profit which he had throughout your divorce to a preservation fund. This implies the fund in opposition to which an order by way of Part 7(8) could possibly be made to pay a portion of the member’s curiosity over to you, now not holds the pension curiosity.

The brand new fund has an obligation to guard the non-public data of members and should not present data to any particular person apart from the member. The one approach to acquire the knowledge from the preservation fund, in case your ex-husband isn’t keen to supply it voluntarily, is to go the authorized path to compel the fund to take action.

The provisions of Part 37D(4)(a)(i)(bb) do nevertheless present some aid.

It permits for the deduction of pension curiosity by way of a binding divorce order by the pension fund or in your case the preservation fund, to which the earlier pension fund transferred the pension curiosity.

There are subsequently authorized cures out there, however this may require an amended divorce order to incorporate the division of your ex-husband’s pension curiosity.


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