It is very important that the pension interest clause is drafted very carefully to ensure all the relevant details are inserted in this clause or else the fund will not pay the pension interest to the relevant party. It is advisable that the Registrar or someone with the necessary knowledge assist you in the drafting of this clausIt is recommended that you must always consider the tax implications relating to the money to be received from the respective funds. The current position is that the person receiving the money will have to pay the tax applicable on the amount. It is also wise that this point is discussed with a professional whom can advise you on tax implications andto ensure that if there is a settlement agreement that this point is addressed properly.

Pension Fund

If you are married in community of property or married out of community of property with the accrual system, then you will have to consider “pension interest.” This is could refer to the spouse’s legal interests in each other’s pension funds, provident funds or retirement annuities.

When you are married out of community of property with the accrual system applicable the pension interest will only apply in the calculation of the accrual. An attorney will be able to assist you with this.

You can either indicate a percentage relating to the pension interest that must be paid out or an amount as long as the amount does not exceed the value of the pension interest.

If you have a pension interest and your spouse is entitled to it, then you should disclose this in your divorce summons. You should include to what the spouse is entitled to and give the full particulars of the fund that the spouse can receive when the divorce order is given. This applies to both parties to the proceedings.

Ensure that you mention the Divorce Act, 70 of 1979 and the Pension Fund Act, 24 of 1956 in the pension clause. Obtain the necessary advice from the Registrar to assist you to complete this clause with reference to the clause in the mentioned Acts applicable. This marital regime will also have an influence on the pension fund interest and the wording of the clause.

If there is a substantial dispute about the pension funds, or if you are uncertain as to what you are entitled to, you should to seek legal counsel before proceeding.

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