As a result of the high divorce rate in South Africa, financial advisers are increasingly receiving queries from their clients regarding the effect of a divorce on their retirement-fund benefits.
The Divorce Amendment Act came into effect on August 1 1989. Prior to this amendment legislation, amounts in retirement funds could not be taken into account for the purposes of arriving at a settlement in divorce proceedings. It was also very difficult to place a value on pension interests.
This Act applies to all marriages entered into on or after November 1 1984, other than marriages out of community of property and whereby community of profit and loss has been excluded.
As a result of the amendments, the Divorce Act differentiates between benefits or pension interests in pension and provident funds on the one hand and those in retirement annuity funds on the other hand.
For purposes of pension and provident funds, the pension interest is an amount equal to the withdrawal benefit, which would have become payable in terms of the rules of the fund if the member had resigned on the date of the divorce.
For purposes of retirement annuity funds, the pension interest is equal to all the contributions plus simple interest at the prescribed rate of interest as at the date of the divorce.
A matter that often causes a lot of heartache is the fact that the non-member spouse’s claim to these benefits can only be paid when the benefit accrues to the member spouse in terms of the rules of the fund. The benefit will accrue to the member spouse when he or she resigns or retires from the retirement fund, or dies.
Another point which most people are unaware of is that there is no interest added between the time that the divorce occurs and the time the money becomes payable.
What are the tax implications when the non-member spouse receives his or her portion of the pension interest?
Paragraph 2B of the Second Schedule to the Income Tax Act was amended and states that an amount that accrues to a fund member’s former spouse in terms of a divorce order shall be deemed for tax purposes to have accrued to the member spouse.
This means that the member spouse is liable to pay the full tax bill due on the non-member’s portion and his or her own portion. It also means that the former spouse will receive his or her full benefit as stipulated in the divorce order without any amounts having been deducted from that benefit.
Paragraph 2B further provides that the member spouse may recover from his or her former spouse the tax payable on the former spouse’s share of his or her pension interest as a result of the inclusion thereof in the member’s income. The right of recovery is against the former spouse and not the fund.
It is worthy noting that the Financial Services Board and National Treasury support the “clean break” approach. This means that each spouse will be taxed on his and her portion of the member’s pension interest respectively. The retirement-funds industry is awaiting a response to this matter from the South African Revenue Service.
Sometimes divorce orders are defective as far as they relate to the division of the member’s pension interest. If the original divorce order did not allow for a sharing of the pension interests, then it will not automatically be shared between the parties as at the date of the divorce. If the parties intended that the pension interests must be shared at divorce and the court order is silent on the matter, the parties will have to go back to the high court and have the divorce order amended. This will mean that further costs are incurred.
It is therefore important that the sharing of the pension interests is included in the divorce settlement negotiations from the start.
A further development to note is that, in terms of the Judicial Matters Second Amendment Act 55 of 2004, when a court grants a divorce order, the court registrar must notify the fund that an endorsement must be made in the fund’s records that the former spouse must receive a portion of the member’s pension interest.
The administrator must then furnish proof of the endorsement, in writing, to the court registrar within one month of receipt of such notification.
However, this amendment has not come into effect yet. It is still incumbent on either the member spouse or the former spouse to notify the administrator of the divorce order.
Supplied by Liberty Corporate Benefits