Party married according to Islamic law entitled to share of spouse’s pension

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 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 or the Civil Union Act, but in terms of the tenets of the Islamic religion.  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.

But, 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.  In her determination, Lukhaimane said that prior to 28 February 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.

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