How do I apply for my ex-spouse's provident fund?

The long answer

As your ex-husband is a policeman, he would be a member of the Government Employees Pension Fund (GEPF).

According to the rules of the GEPF, a member must complete a Nomination of Beneficiaries form (WP1002) listing their financial dependants and anyone else that they want to nominate to share in the benefit and the percentage of the benefit to be shared. (Both the human resources department and GEPF are not allowed to tell anyone who the nominees are.)

This nomination form is submitted to the human resources department, together with supporting documents like certified IDs and birth certificates to pass onto the GEPF. The nomination form should be updated and amended if there are new dependants or the member gets divorced. If the member dies while still working or within five years of retiring, certain benefits are paid to the dependants by the GEPF.

If the member amends the nomination form, it replaces the old nomination form, except that if the member does not include all dependants, the GEPF has the right to overrule beneficiaries that have been excluded if they meet the GEPF rules for beneficiaries. Beneficiaries are dependants (children under 18 or under 22 and studying, if that can be proved) and include children born out of wedlock. Thus, members are advised to include their dependants before other nominees. 

Although there has been an important ruling in this regard by the Supreme Court of Appeal in 2017 (Ndaba vs Ndaba), which I will refer back to later in this letter, a 2020 GEPF online booklet still says that “The GEPF pay a claim against a member’s benefit upon receiving a divorce decree ordering the Fund to pay an ex-spouse.”

In other words, the GEPF says that it can only pay out an ex-spouse if the divorce order specifically states that the ex-spouse is entitled to a share of the member’s pension interest and gives the correct name of the fund. (Pension interest means the pension that has been accumulated by the date of divorce.)

If there is a divorce order, an ex-spouse must complete a Choice Form where they choose whether they want to take the benefit as a lump sum or whether they want to transfer it to another approved retirement fund. Together with the completed Choice Form, an ex-spouse must submit an original certified copy of their ID not older than six months, an original certified copy of every page of the final divorce order or settlement agreement, and an original certified copy of their SARS tax registration.

So, your divorce order must specifically order the GEPF to pay you your share of your ex-husband’s pension benefit. If you were married in community of property, you would be entitled to 50% of the pension interest, and if you both were members of pension funds, you would each be entitled to 50% of the other’s pension funds.

The GEPF would have to pay you out within 60 days of receiving your Choice Form.

You could approach the GEPF with the documents mentioned above. Their contact details are:

www.gepf.co.za  

GEPF’s toll-free Call Centre at 0800 117 669.

You can also go to their local office to talk to them and would need to bring your ex-husband’s GEPF member’s number, your ID, and divorce order.

In Western Cape, the address of the GEPF office is:

21st Floor

No. 1 Thibault Square,

Cape Town.

But what do you do if the divorce order does not specifically mention the pension fund interest? If, as the law puts it, the court order is silent on this point?

There have been a number of cases taken to the High Court by ex-spouses whose divorce orders were silent on the point of sharing pensions, and there have been a number of conflicting judgements by the High Court. 

In one case, Sempapalele vs Sempapalele, the judge, Musi J, found that “... the applicant failed (for whatever reason) to obtain at the hearing of the divorce matter a Court order awarding her a share in the respondent’s pension interest in terms of s7 of the Divorce Act. She cannot now get such an order.”

In the case of Ndaba vs Ndaba, the ex-wife, after the divorce asked the High Court for an order that she and her husband be paid 50% of the other’s pension (both were members of the GEPF), and she lost the case. But she took the case on appeal to the Supreme Court (SCA). In 2017, the SCA said that:

“… the real issue on appeal is therefore whether a non-member spouse in a marriage in community of property is entitled to the pension interest of a member spouse in circumstances where the court granting the decree of divorce did not make an order declaring such pension interest to be part of the joint estate.

“… the question is whether the parties in a divorce expressly have to include the division of the pension in their divorce order – so that the order compels the Pension fund to pay out the non-member spouse the 50% due to community of property or whether it can simply be agreed that the pensions of either or both the spouses form part of the joint estate which must be divided up 50/50 on divorce.”

Mr Maromoegae, a Professor of Law at the University of Witwatersrand, explained in a 2017 article that the SCA in Ndaba vs Ndaba did not agree that a non-member ex-spouse only became entitled to a share of the member spouse’s pension if the court that issued the decree of divorce declared that she was entitled to share in the pension in terms of section 7 (8)(a) of the Divorce Act. 

The non-member was entitled to 50% of the member’s pension because the marriage was in community of property, not because the court had given permission in terms of section 7 (8) (a) of the Divorce Act.

This judgment, Mr Maromoegae explained, clearly settled the legal question that the non-member spouse is entitled to claim their member spouse's pension interest as at the date of divorce. As the law currently stands, whether or not the court makes an order in terms of section 7(8) of the Divorce Act, the non-member spouse still retains the right to claim the value of the pension interest as it was at the date of the divorce, if they did not claim it before the divorce.

But, he went on to say, one of the outstanding questions was whether a former non-member spouse kept their right after the divorce to claim the share of the former member spouse's pension benefits when they had not claimed the pension interest during the divorce proceedings. 

And that in turn led to the question of whether or not there was a time limit for the non-member spouse to claim the former member spouse's pension interest after their divorce. 

A third question is whether or not the former non-member spouse, after the divorce, can claim a portion of their former member spouse's pension benefits when the former member spouse has already received the pension benefits.

In particular, it remains unclear how long a former non-member spouse should wait to claim his or her share of his or her former member spouse's pension benefits. In Ndaba vs Ndaba, the fact that the non-member spouse failed to claim her portion of the pension interest upon divorce does not mean she can never claim the pension interest after the divorce. 

Mr Maromoegae asks finally, “Does the fact that the non-member spouse is entitled to such a benefit allow him or her to claim the benefit at any time after the divorce?”

As the SCA judgement didn’t go into questions like these, the questions are still unanswered for now, but hopefully will be resolved by the SCA in future. 

If you need legal advice, you could contact Legal Aid, which is a means-tested organisation that must assist people who can’t afford a lawyer. These are their contact details:

Legal Aid Advice Line (Toll-free): 0800 110 110

Legal Aid Ethics Hotline: 0800 153 728

Please-Call-Me number: 079 835 7179

Email: comunications2@legal-aid.co.za

You could also ask one of the following organisations for help and advice:

• The Legal Resources Centre: 

Email: info@lrc.org.za

Tel: Johannesburg 011 836 9831, Cape Town 021 481 3000.

•  The Black Sash (which gives free paralegal advice)

072 663 3739 / 063 610 1865

help@blacksash.org.za

Wishing you the best,
Athalie