Pension Interest not part of the accrual system

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Accrual System

Your pension interest not part of the accrual system at the dissolution of a marriage subject to the accrual system, by divorce or by the death of one or both the spouses. When the Net asset value in the two parties estates

The spouse whose estate shows no accrual or a smaller acrual that the estate of the other spouse acquires a claim against the other spouse for an amount equal to half of the difference between the accrual of the respective estates of the spouses.

The key here is estate assets and only the assets that form part of your estate, for example presents, inheritance are excluded from your estate.

Your pension interest is protected with Section 37 A and section 37 B of the Pension Funds Act 24 of 1956 againt creditors

Your pension interest does not form part of your estate and therefore are not part of the accrual claim at time of divorce or death.

Section 37 C give the trustees of the pension fund the final say of how your pension interst should be divided at time of death.

When you get divorce the act changes in 2007 to make provision for clean break. Section 37D(i)(d) provide for the court in certain cercumstances to allocate certain amount to other spouse which not part of the pension fund but nothing to do with the acrual system.

In terms of the Divorce Act 70 of 1979 and section 7(7)(a) that gives the court the power in a divorce action to declare the pension interst part of his or her assets when making a order or maintenance order

When you already bought a living annuteit not a “pension interest” as defined in the Divorce Act

 

In M vs M (2016) the High Court in Johannesburg ordered that while a person does not have a right to the capital while he/she is living the capital does not form part of estate and can therefore not forming part of the calculation when accraul is calculated in terms of the Matrimonial Property Act 88 of 1984

 

 

 

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Divorce

How to get divorce

The divorce process in South Africa is relatively uncomplicated, yet the financial and emotional consequences can be overwhelming. Therefore, most divorces are normally lodged in the High Court. Hence, the High Courts in South Africa have overly burdened court rolls, and parties normally have to wait a long time for their divorce matter to go to trial when their divorce is contested.

There are three types of divorces

  1. Uncontested Divorce
  2. Contested Divorce
  3. Divorce by default

The best way to get divorced is an uncontested divorce. Therefore to settle the matter in an amicable way. Hence, this type of divorce is the best and most cost effective for all parties concerned. Filing for an uncontested divorce can be finalized in as little as 6 weeks.

The divorce process

A divorce action is instituted by the issuing of a summons at the court. You can divorce in either the Regional Court having jurisdiction in your area or in the High Court. To start the divorce process you need to serve a Summons. A divorce summons is unique in that it must be served personally on the defendant by the sheriff of the court.

A court has jurisdiction in a divorce action if one or both parties are:

  • domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or
  • ordinarily resident in the area of jurisdiction of the court on the said date and has/have been ordinarily resident in South Africa for a period of not less than one year immediately prior to that date.

Uncontested Divorce

The best decision you can make is to do your divorce in an uncontested manner. An uncontested divorce is one in which you and your spouse agree on the terms of your divorce. You will both consult with the same attorney, who will be unbiased and impartial. There is no formal trial, and only the plaintiff appears in court.

In an uncontested divorce, the parties agree prior to the divorce on how to divide their assets and, if there are children involved, which parent will become the parent of primary residence and which will be the parent of alternate residence. A settlement agreement is then drafted with the help of the attorney, entered into (signed) by both parties, and made an order of the court. Therefore, an uncontested divorce is without a doubt the least expensive type of divorce.

Default divorce

A default divorce is a method of uncontested divorce. Therefore, a court will grant a divorce by default if you serve a divorce summons on your spouse and he/she does not respond. Hence, a default divorce, the plaintiff prepares a summons setting out his/her claims with or without the help of an attorney.

A court issues the summons and a sheriff serves the summons on the defendant in person. The summons specifies the number of days in which the defendant has to file a notice of intention to defend, i.e. contest the divorce (10 days when the parties live within the jurisdiction of the court or 20 days if they live in different provinces). If the defendant does not answer by way of a notice of defense within the allotted time. Therefore,  the plaintiff may approach the court to enroll the divorce on the court roll and conclude the divorce on the defendant’s default. In such a case, only the plaintiff appears in court.

Do-it-yourself divorces or Self Help Divorce

DIY divorces are concluded without the help of an attorney. Therefore a far cheaper option. Divorcing without an attorney can be accomplished in two ways:

  • Your local magistrate’s court can provide you with the necessary forms and give you guidance on how to conclude your own divorce without legal representation.
  • If you don’t want to wait in a queue, you can use an on-line divorce service such as self-help-divorce.co.za to draft your divorce papers for you. All you will need to do is fill out a questionnaire and pay the fee.