Recent times have been life-altering for so many, from emotional and health traumas to relational and financial traumas. We’ve all had to encounter a considerable onslaught of ‘stuff’ to process and deal with.
It may just be life, but it’s still hard.
Divorce is one such trauma that so many have to work through. It has a wide range of social and financial implications, as Lebona Khabo from Allan Gray highlighted in a recent article on their website.
Depending on your matrimonial property regime (considers implications like community of property, accrual, pre-marital ownerships etc.), there may be a sharing of assets you own individually or jointly when you get divorced. One such asset that may be included in this division is your retirement savings, which may have been accumulated over a long time.
Retirement products fall under several legislations when they represent assets that are jointly owned (subject to tax legislation and family and divorce legislation) – and this creates complex considerations in a divorce settlement.
Furthermore, some of these products may only mature at a future date, so whilst not available to the principal member, they may have future value to dependants. This needs to be included in a settlement. In many instances, court challenges have made provision for a ‘clean break principle”, which allows for the non-member spouse to receive their share of the benefit, referred to as “pension interest”, at divorce.
Pensions interest encompasses marital regimes and the type of investment, and is a dynamic principle of law that is constantly evolving with applications and legal challenges.
All of this is a very high view of a complex and technical area of financial planning and law, so please remember to check the specifics of your unique situation before making any decisions or signing any agreements.
Ideally, you want to keep things short and simple. A divorce order should:
Ensure that the retirement fund is identified, or identifiable.
Provide that the non-member is entitled to “pension interest”. An order that refers to “interest”, “full value” or ”retirement interest”, may be invalid. (this may vary in different geographical jurisdictions)
Provide for the pension interest amount or percentage that must be paid to the non-member (e.g. “50% of pension interest”).
Instruct the retirement fund to make the pension interest deduction.
If you are going through a divorce, it’s probably one of the hardest things you will ever do. Surround yourself with people you trust to help you make the best decisions for your future. There will be immense pressure to ‘wrap things up’ and ‘end this quickly’ – but this can cause us to make decisions that we will regret later.
Take the time you need and speak to the people you need to before making any decisions that will affect your future financial wellbeing and personal happiness.