Pension Funds and Divorce in South African Law
July 18th, 2010What is the position of a spouse's pension in the case of a divorce?
A pension fund or pension benefit, as defined by the Pension Fund Act, 24 of 1956, includes not only a Pension Fund but also an Annuity Fund and a Provident Fund. Section 7(7) of the Divorce Act7 of 1989 (as amended) provides that, in the determination of the patrimonial benefits to which the parties in any divorce action may be entitled, the pension benefits of a party shall be deemed to be part of his/her assets. Thus in any divorce action, a party's pension benefits shall also form part of his/her estate in the determining the patrimonial benefits to which a party in a divorce action will be entitled.
The position regarding the pension benefits in the different marital regimes is therefore as follows:
Marriages in community of property
Where the parties have entered into a marriage in community of property, one joint estate is formed. When the marriage dissolves through divorce, each spouse will be entitled to 50% of the joint estate, which joint estate includes the parties' pension benefits as well. The only exception would be if the Court made an Order in terms of Section 9 of the Divorce Act to the effect that one party forfeits in favour of the other, either wholly or in part his/her patrimonial benefits due to substantial misconduct during the divorce.
Marriages out of community of property without the accrual system
When a marriage out of community of property without the accrual system ends through divorce, each spouse will retain his/her own estate. The basic rule is that neither spouse will have a claim against each other spouse, but Section 7 of the Divorce Act provides that a Court may, on application by one of the parties, order that a part of one-spouse's assets be transferred to the other spouse. The spouse's assets, which are to be transferred to the other, shall then also include his/her pension benefits.
Marriages out of community of property with the accrual system
At the dissolution of a marriage out of community of property with the accrual system through a divorce, a redistribution of assets will be done according to a prescribed formula, which means that the spouse whose accrual during the marriage was smaller is entitled to half of the difference of the accruals between the spouse's estates. The accrual is calculated by deducting the beginning value of the estate from the end value of the estate. A spouse's pension benefits will therefore in this be taken into account when the accrual is calculated.
In terms of Section 1 of the Divorce Act, a spouse is only entitled to the other spouse pension benefit as at date of divorce, a spouse is not automatically entitled to any interest accrued to the other spouse pension benefits. This means by implication that any benefits of whatever nature including the interest accrued upon a pension benefit, does not form part of a person's estate for the purposes of divorce.
The parties are however entitled to enter into an agreement between themselves regarding the interest accrued to a spouse's pension benefit.
Who pays the tax?
In terms of Section 37A of the Pension Fund Act 24 of 1956, a person's pension benefits are taxable. The parties are entitled to enter into an agreement, which provides that the tax payable on that part of the pension benefits, to which the non-members spouse is entitled, shall be recovered from such spouse.
In the case of divorces granted before 13 September 2007, the member is responsible for any tax in respect of the spouse's benefit, irrespective of whether it is paid to the spouse or transferred to another retirement fund.
In the case of divorce orders granted on or after 1 March 2009, any tax is payable by the spouse on the benefit that he or she receives.
In respect of divorce orders granted from 13 September 2007 to 28 February 2009, the person liable for the tax on the pension interest depends on the date the spouse made his/her election as to whether he/she wants the benefits to be paid in cash or be transferred to another retirement fund of the spouse's choice:
- for an election before 1 March 2009 the member has to pay the tax.
- for an election from 1 March 2009 the spouse has to pay the tax
The Income Tax Act provides the member with a right to recover tax that the member had to pay in respect of the spouse's benefit, from the spouse.
Adopting a child in South Africa
July 15th, 2010
Part One
Adoption:
In terms of Section 228 of the New Children's Act 38 of 2005 a child is adopted if the child is placed in the permanent care of a person in terms of a court order that has the effects contemplated in Section 242 of the Act.
From the above it is clear that an adoption can only be legal if a court order has been made by a presiding officer of a Children's Court. Thus, a legal adoption is an administrative function of the lower court and Judges of the High Court as upper guardians of children, does not have the such function. Once adopted it follows that full parental powers and guardianship flows to the adoptive parents.
Who may be adopted?
In terms of Section 230, any child may be adopted if:
(a) The adoption is in the best interests of the child;
(b) The child is adoptable;
(c) The provisions of the Act is complied with.
A social worker must also make an assessment to determine if a child may be adoptable.
When are children adoptable?
(a) When a child is an orphan and has no guardian or care-giver that is willing to adopt the child.
(b) When the whereabouts of the child's parent or guardian cannot be established.
(c) When a child has been abandoned.
(d) When a child's parent or guardian deliberately abused or neglected the child.
(e) Where a child is in need of a permanent alternative placement.
It is interesting to note that a child of 10 years or older must agree in writing to be adopted. Thus the feelings and personal opinion of the child needs to be taken into account.
Where a child is abandoned the norm is that a Social Worker will advertise the adoption in at least one local and national newspaper to attract any extended family members of the child. Although the aforementioned refers only to foster children this seems to be applied in all matter of abandonment.
Who may adopt a child?
Section 231 regulates who may adopt a child. A child may be adopted jointly by:
- a husband and wife;
- the partners in a permanent domestic life-partnership;
- other persons sharing a common household and forming a permanent family unit.;
- by a widower, divorces or unmarried person or a widow;
- a married person whose spouse is the parent of the child or by a person whose permanent domestic life-partner is the parent of the child;
- by the biological father of a child born out of wedlock if the father did not already obtained rights under Section 21 of the Act;
- by the foster parent of the child.
It is to be noted that one spouse in a marriage may not adopt a child without the other spouse, except in a case where the one spouse is the natural parent of the child. The natural parent keeps all the parental rights and responsibilities and does not lose those rights when the other parent adopts the child, thus the spouses don't adopt the child together.
It is also clear that homosexual, heterosexual and unmarried couples are also able to adopt a child. Also partners in a customary (polygamous) and Muslim customary marriage are entitled to adopt a child.
In circumstances where a child is adopted by a married person whose spouse is the parent of the of the child the mother will retain guardianship throughout the process. A Social Worker will only recommend such an adoption if the marital relationship is stable and has existed for a reasonable period. Where a mother is not the only guardian of the child the consent of the other parent will also be required. Also where exclusive guardianship was awarded to the mother the other parent's consent will also be required. In terms of Section 236 of the Act, a parent can approach the Court to have his parental rights re-instated.
International Divorce South African Abroad
July 5th, 2010
If you are living in South Africa and your spouse lives overseas, you are able to institute divorce proceedings against your spouse through the courts in South Africa. The same applies when you are a South African citizen that lives overseas and one spouse resides in South Africa. A South African court has jurisdiction where the parties or either of the parties are domiciled in the area of the court's jurisdiction on the date on which the action is instituted or ordinarily resident in the area of jurisdiction of the court on the date on which the action is instituted or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date.
The above also implies that foreigners (people who are not South African citizens) and who have been living in South Africa for more than a year, may divorce through the South African courts.
The person instituting the divorce proceedings are called the Plaintiff. Where the parties reached a settlement, only the Plaintiff appears in Court. So, if a Plaintiff lives overseas he/she will have to appear once the matter is placed on the Court roll. The same applies if the Plaintiff resides in South Africa. It is not necessary for the Defendant to appear in court.
Where a Defendant (the person against whom the divorce is instituted) lives in another country, a Plaintiff must first approach the court by way of what is known in law as an Edictal Citation application. This affords permission to a Plaintiff to serve the divorce documents on a spouse in a foreign country. Because a Summons in a divorce must be served on the Defendant in person, the Court needs to be satisfied that service will be done properly by an official of the court in a foreign country. Edictal citation is therefore a procedure according to which a legal document such as a divorce summons is served by a sheriff (in some countries known as a "service processor" or a solicitor) in a different country. Therefore it is a myth that a summons can be served via email or by registered post in divorce proceedings. In today's society people move all over the world for various reasons and very often the country in which a person gets married is not necessarily the country in which they get divorced. Often a newly married couple will get married in South Africa, move overseas, only then to discover that their relationship is not working out, and one of them then moves back to South Africa.
If you want to have a divorce summons served overseas you will first have to convince the court by means of an affidavit that there is no other way to have the divorce summons served, and in that affidavit annex full details of the sheriff to use to serve the summons in the foreign country. Edictal citation is a rather expensive procedure to get divorced, as instead of paying about R200 to the sheriff in South Africa, a party may have to pay up to R3000 to a sheriff in London. It is also quite a lengthy procedure as it involves communicating with people in a foreign country, as well as the posting of documents overseas. After serving of the summons in a foreign country, a spouse will have a month to defend the action. If he or she ignores the summons or, if he or she defends it, after reaching settlement of the financial terms the matter may be for a date that has been pre-arranged with the Registrar of the High Court.
KWJ Inc. specialises in international divorce matters concerning South African citizens and has acted in matters for South Africans living in countries such as Australia, United Kingdom, USA, Indonesia, The United Emirates, Germany, New Zeeland, Namibia to mention but a few.
KWJ Inc. can be contacted on info@divorceattorney.co.za or at www.divorceattorney.co.za
Reasons why people divorce in South Africa
July 4th, 2010
Why is it that almost 50% of all marriages in South Africa (and over 60% of all second marriages) will end up in divorce? Here are the 10 top reasons.
Reason #1: Infidelity
Cheating happens because of a deeper reason than the desire to have sex with someone new. Whether it's because of anger, frustration, resentment or boredom, the act of adultery annihilates the trust and, for many, destroys the marriage completely. It goes to the core foundation of any marriage.
Reason #2: Physical, Emotional, or Verbal Abuse
Any time there is yelling, hitting, constant arguing, name calling or emotional manipulation going on, you have a marriage that has been compromised on all levels.
Reason #3: Money, Money, Money
Couples who do not know how to budget, allocate, save and earn money as a united front end up fighting over financial issues in a very personal and attacking way. Over time, these confrontations kill the relationship.
Reason #4: In-Law Problems
When two people marry, whether they care to admit it or not, their families come along with the package. The only exception to this is if the spouse is not close to his or her family or has disowned them. Other than that, a marriage is definitely impacted by the in-laws who can interfere in the marital relationship if the blood-related spouse allows them to.
Reason #5: Life Transitions
People are always changing. Who you marry at 18 will not be who you are married to at 37. Given the constant evolution of all people, it's natural to go through growing pains. We call them mid-life crises. In marriage, two people either grow together or they grow apart. No matter what, they are always growing.
Reason #6: Addictions
Any addiction (alcohol, drug, exercise, overeating, porn, internet usage, gaming) takes a spouse completely out of the life of his or her family and rips from that person a real sense of accountability, availability and participation in the relationship. Any addiction, if gone untreated, will destroy a marriage.
Reason #7: Childhood Hang-ups
Every person enters a marriage with some scars from the parent/child relationship. After all, our parents were only human. They were raised by parents who made mistakes and they raised children and made mistakes and we'll raise children and make mistakes. It's natural. What can hurt a marriage is any childhood scar stemming from the parent/child relationship that hasn't been adequately dealt with. If the pattern is ignored and not healed, it will resurface in the marriage and the anger that you felt about how your family treated you will eventually come out in how you communicate with your spouse. Healing and releasing of the past are keys to building a successful marriage.
Reason #8: Drastically Different Life Agendas
Most marital issues can be worked out through cooperation and a willingness to reach common ground. However, there are certain issues that simply cannot be worked out. For example, if you want a big family and you marry someone who doesn't want any children, you're at an impasse if that person never changes his or her mind. If your spouse grew up in a very tight nit family and wants to continue that by living down the street from his/her parents and your desire is to move cross country and begin a new life, you're at an impasse. Even if you convince your spouse to move with you, what you're setting up for is resentment and anger at having to give up his/her dream in the long run. Handling this issue requires wisdom and honesty before getting married.
Reason #9: Life Overload
There is way too much admiration in this society for "super" people. Whether it's a superwoman or a super couple, there's this myth that taking on everything all at once and juggling way too many things makes that person or couple superior to everyone else. Nothing could be farther from the truth. When a couple takes on way too much way too soon (meaning they get married, buy a house, furniture, new car, kids, go back to school, new job, start a business, etc., etc), they spiral themselves into levels of stress and overwhelm that the maturity and strength of their connection is not yet ready to handle. Everything has its proper place and occurs, when we choose it, in its rightful time. To rush things so you can be the "super couple" is to sentence your relationship to a level of imbalance that doesn't need to be there and can, if experienced for too long, lead to divorce.
Reason #10: Controlling Behaviour
Especially in marriages where people got married very young, the issue of control comes into play. When you were eighteen, you might've looked to your spouse as a teacher or as someone who could save you. But, as you got older and became more independent, that was no longer a role you needed your spouse to play. Not every spouse likes the loss of control that comes along with that shift. Independence is vital to any healthy marriage. However, when one spouse is used to calling all the shots and having that power be readily accepted by his or her partner, it's a difficult thing when that changes. Some spouses try to impose even more control to keep the power and that's when you move quickly in the direction of a divorce. Anytime you try to make your spouse feel small so you can feel big, you've got a problem and it's not going away.
You've now got the top ten reasons for divorce. Get familiar with each and evaluate your marriage, not simply by these criteria but based on your ability, as a couple, to work through the issues surrounding each reason.
Compiled by eDivorce: South Africa's largest online Divorce Service: http://www.edivorce.co.za
Divorce Application Forms Online
July 4th, 2010
Divorce is always an emotional rollercoaster. But in case you have to go the route of divorce, a cheap uncontested divorce, with less difficulty and less cost is really the answer. Keeping the method simple & cheap makes it much less of an ordeal for both parties. One way to do that is to take advantage of online divorce services. In South Africa eDivorce has been on the forefront of the online divorce process offering a cheap, reliable alternative to the high cost of divorce normally associated with legal fees. In fact, it is much cheaper and actually much faster.
It helps to understand what is meant with terms like uncontested divorce or no contest divorce. An uncontested divorce is when both of you agree that there will be no challenge to the divorce & that you will cooperate with the method of splitting the assets or the care and contact of the children. If one of the marriage partners fights the divorce & desires to take it to court that is a contested divorce.
For obvious reason an uncontested divorce saves money and is less straining on the emotions. But sometimes when a partner desires to go to war over how the assets of the marriage will be split up or over who will bear the costs and care of the children etc. It becomes nasty.
When divorce seems to be inevitable, if you and your spouse can sit down in an amicable way and agree to an uncontested divorce, you both will come out of the process better off. It is better to agree how to split up assets including money than to give it all to attorneys in a long and ugly divorce battle. Once you come to that agreement that a cheap uncontested divorce is the way to go, start hammering out the areas you agree about like how the house and property will be divided and the best arrangement for the children and get that in writing so when you go see the judge, it is all ironed out.
This is not to say that just coming to a warm and friendly approach to the divorce means no trips to the sheriff or court. A marriage certificate is still a legal document and dissolving it means filing a divorce summons. There are still forms to be filled out exactly correctly and paperwork that has to be completed.
The online divorce service eDivorce help with these legal requirements tremendously. When you want a cheap uncontested divorce, it is worth your while to learn how the internet can assist. While eDivorce charge fees for their services, those fees are so much lower than engaging an attorney to walk you through your divorce and a service like eDivorce is a key strategy to accomplish a cheap uncontested divorce.
To get a feel for how much money you can save using an online divorce service, look at the costs that you and your spouse will run up if you try to accomplish a cheap uncontested divorce using a conventional attorney. Even if you share an attorney because it is a uncontested divorce, you are still looking at thousands of rands of expense compared to a few hundred using eDivorce. Why waste that money that can go to help both of you launch your new lives.
Literally hundreds of people in South Africa have been helped by eDivorce. Don't worry if you have questions about the process because eDivorce have lots of resources to answer those questions. They did not get as popular and as successful as they are without being able to deliver cheap uncontested divorce help while doing a very good job helping you through the process.
It costs nothing to browse an online divorce service like eDivorce. If you have agreed to a uncontested divorce, take some time together and surf the site. Just because online divorce services are an ideal way to get a cheap uncontested divorce finalized, that doesn't mean that their services are not complete and that they will not make sure you dot every "i" and cross every "t" in the process.
If you can agree with your spouse to part company cooperatively, both of you win with a cheap uncontested divorce. It is even easier on the kids if you go through a uncontested divorce and come out working together for their benefit. So why not take that concept to the next level and take advantage of an online divorce service. After all, almost every other kind of service has gone to cyberspace so this step of using an online divorce service just makes sense these days.
eDivorce can be located at http://www.edivorce.co.za
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