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Pretoria – 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 abundantly 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 and Civil Union Act, but in terms of the tenets of the Islamic religion.
Settlement agreement
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.
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.
The marital bond between the complainant and Mr Paulse was dissolved on February 20 2013 in terms of the tenets of the Islamic religion. The divorce and the settlement agreement between the parties were made an order of the Western Cape High Court in Cape Town on February 25 2014.
The respondents submitted that in terms of the Act, only a court granting a decree of divorce can grant a section order and argued that the court order at hand was granted following application proceedings.
The respondents agreed that in terms of the recently amended section of the Pension Funds Act, a marriage under Islamic law was recognised for the sake of payment of pension interest.
Divorce orders
They contended that Islamic marriages may be treated in the same manner as the dissolution of civil and customary marriages.
The respondents said the above-mentioned shortcoming had been brought to the attention of the deputy Registrar of Pension Funds at the meeting with the Institute of Retirement Funds' legal and technical committee.
The respondents said the parties could choose to wait for the legislative amendments and then re-submit the order to the first respondent and claim the payment of the share of the pension interest to the non-member spouse.
However, there is no guarantee that such a legislative amendment will apply retrospectively. Alternatively, the parties could elect to resolve the matter between themselves without the involvement of the first respondent.
In her determination, Lukhaimane said that prior to February 28 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.
