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August 2015 - Newsletter
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Relocation Disputes

Relocation disputes between parents are frequently in our courts. Where both parents have guardianship, it necessarily follows that consent will be needed when one decides to relocate with a minor child. It is important to note that there is no section in the Children’s Act that deals specifically with relocation. The closest the Act gets to relocation is a section that deals with the jurisdiction of the court in matters where a child is removed from South Africa.
 
It is an unfortunate reality of marital breakdown that the former spouses must go their separate ways and reconstruct their lives. Typically, a relocation dispute will arise when one parent, normally the parent of primary residence and with whom the child usually resides, decides to move town/province/country. Often, the parent who is to be left behind will refuse to give consent for the relocation. The primary caregiver can then approach the High Court for an order dispensing with the other parent’s consent. It must be noted that it is not a given that the court will automatically give its consent. Because the Act does not set criteria, our courts have to consider various facts and case law before they can grant an order allowing relocation.
 
Factors a court will rely on in cases of relocation

The court will only grant permission based on the best interests of the child. An important factor that the court will take into consideration is whether the decision by the parent to relocate is reasonable and bona fide. Our courts take a pragmatic approach to such cases, and although the move may be detrimental to the other parent who will have less contact with the child, life must go on. That is not to say that the courts don’t consider the impact of the relocation of the left-behind parent, but our courts are compelled to respect the freedom of movement and family life of relocating parents. In looking at what is in the best interests of the child, the court will also consider whether relocation will be compatible with the child’s welfare.
 
Examples of relocation court cases
  1. The court rejected a mother’s application to relocate with her daughter despite finding that the decision to leave was bona fide. What the court found was that the practicalities of her decision to move were ill-researched and outweighed by the child’s need to not be separated from either parent.
  2. The court rejected a father’s application to relocate with his daughter. The relationship between the parents was acrimonious and, at the time of divorce, the father alleged that the mother had sexually abused their daughter. Based on this and various other factors, the court awarded care to the father. After several years, the father sought to relocate to Israel. Although the mother initially gave her consent because she was led to believe she would be allowed contact with her child, she later withdrew it when she realised that her belief was false. The court refused the relocation based on the fact that the father could not provide sufficient information about when and where he would be employed, where the child would be going to school and how she would be assisted to learn Hebrew. The court also found the father to be thwarting attempts by the mother to rebuild her relationship with her daughter. The court emphasised the fact that it was important for the mother and child to re-establish their relationship, and criticised the experts (psychologists) who had recommended the relocation for not considering all the facts.
  3. The court rejected a mother’s application to relocate with her four children, aged eleven and eight (triplets). The parents had been awarded joint care in the divorce settlement agreement, the intention being that the children would spend an equal amount of time with each parent. Three years after the divorce, the wife filed an urgent application in the High Court for variation of the care order: she sought an order declaring her the primary caregiver and granting her the authority to relocate the children from South Africa to Dubai to live with a new man whom she planned to marry. A social worker and a clinical psychologist commissioned by the mother recommended that she be granted primary care and permission to relocate. Experts not commissioned by her held a different view, finding that relocation would not be in the best interests of the children as they would miss their father, school friends and the city to which they were accustomed. The court found that the mother’s experts’ recommendations were based too heavily on financial issues and did not sufficiently take into account the bond that existed between the children and their father. The court relied, ultimately, on the children’s views, having found that they were of an age and maturity to make informed decisions. The mother’s application was dismissed as the court found that it was not in the children’s best interests.

What happens to my pension when I divorce?

It is of vital importance that the retirement fund clause in a divorce Settlement Agreement is drafted by an attorney who specializes in Divorce Law. It happens frequently that clauses are so badly drafted that a Fund rejects a claim. A substantive application to court is then necessary to rectify the bad drafting. The term ‘pension fund’ is both a generic name for all types of retirement funds that fall within the scope of the Pension Funds Act, and a descriptor of a specific type of pension fund, one in which at least two-thirds of the retirement benefit must be taken as an annuity. Other types of pension funds are provident funds, where the member may take the entire retirement benefit in cash, retirement annuity funds for retirement plans outside of the occupational/workplace environment, and preservation funds, to which benefits from a pension fund can be transferred. 

One should never rush into dividing up pension and/or retirement funds in a divorce settlement. It frequently happens in divorce cases that pension fund administrators reject settlement agreements on the basis that the clauses dealing with the pension interest payout to a non-member spouse are drafted incorrectly. It is therefore of the utmost importance that the clauses dealing with pension pay-outs be drafted properly. If not drafted properly, application will have to be made to the court at great cost to amend or vary the settlement agreement.

The relevant provisions that control the allocation of unaccrued pension benefits to a non-member spouse upon divorce are contained in the Divorce Act and in the Pension Funds Act 24 of 1956.

A claim under the Divorce Act can only be brought where the husband/wife or a partner in a civil union is still a member of the fund. Once he/she exits from the fund, usually on retirement or as a result of an early withdrawal, the benefit accrues to him/her, and there is no longer any ‘pension interest’ or unaccrued benefit. If the benefit accrues before the date of divorce, it must be dealt with as any other asset in the separate or joint estate.

Where couples are married or in a civil union in community of property, each partner will have a claim against the other’s pension fund. The claim will be for half of the pension interest on the date of divorce.

The marital systems in South Africa and how they affect retirement fund claims

Marriages in community of property

The pension interests of the spouses will form part of the parties’ joint estate and the non-member spouse will be entitled to claim 50% of the pension interest of the member as at the date of the divorce.

Marriages out of community of property with accrual

Where couples are married out of community of property with the accrual, the spouse’s pension fund value will be taken into consideration in order to determine the value of his/her estate for purposes of the accrual calculation only. 

Marriages out of community property without accrual before 1 Nov 1984

The spouses retain their own separate estates and there is no sharing of assets at divorce, unless a court orders a redistribution of assets in terms of Section 7(3) of the Divorce Act. A pension interest forms part of the spouse’s estate and will then form part of the assets if redistribution is ordered by the court. The parties may also agree to share the pension interest in a settlement agreement.

Marriages out of community of property without accrual after 1 Nov 1984

Here the spouses retain their own separate estates and there is no sharing of assets at divorce. Any share in the pension interest will have to take place by mutual consent. The parties may also agree to share the pension interest in a settlement agreement.

The clean-break principle

The Pension Funds Amendment Act, 2007, introduced the so-called clean-break principle for the treatment of retirement fund benefits upon the granting of a divorce decree. The Act allows retirement funds to deduct an amount or percentage upon divorce from a member’s benefit and pay it to the non-member spouse or to a retirement fund of his/her choice. The clean-break principle allows a non-member former spouse to access an agreed or court-ordered share of the member spouse’s retirement savings on divorce.

Any assigned amount may be paid from the member’s pension fund to a non-member spouse in terms of a divorce order granted under the Divorce Act, irrespective of the date of divorce, but may not be more than 100 per cent of the value of the member’s withdrawal benefit at the date of divorce. In order for the fund to make the deduction and payment to the non-member spouse, the fund must be ordered to endorse its records (make a note on the system) to such effect and/or to make payment to the non-member spouse. The non-member spouse can elect to receive a cash lump sum or to have the money transferred to an approved pension fund. 

A fund is not allowed to deduct and pay over interest on the amount assigned to the non-member spouse (except where the fund does not pay the non-member spouse within the time frames stipulated in the Act).

The Government Employees Pension Fund (GEPF) was amended to introduce the clean-break principle with effect from 1 April 2012. In the past, the portion of a member’s pension benefit payable to a former spouse as part of a divorce settlement was only paid when the member spouse left the fund. With the new amendments, former spouses will now be able to receive their share of the pension interest soon after the divorce has been completed, either in cash or as a transfer to another pension fund. The new rules state that on the date of payment of a divorce benefit the GEPF will create a debt against the member that is equal to the amount payable to the non-member spouse. The debt amount will build up, with interest, up until the member exits the Fund (and it will be reduced to the extent that the debt is partially repaid over the member’s remaining period of service in the Fund). At the date of the member spouse’s exit from the fund the total value of the benefit will be determined, and will then be decreased by the outstanding amount of debt owed. 

Pension interest

‘Pension interest’ is defined in the Divorce Act for every type of fund except a preservation fund. According to the Pension Funds Act, ‘pension interest’ is:

Pension and provident fund - The benefits to which a member would have been entitled to in terms of the rules of the fund if his/her membership had terminated, due to resignation, at the date of the divorce.

Retirement annuity- The sum of the member’s contributions to the fund up to the date of divorce plus simple annual interest at the prescribed rate.

Preservation fund - The benefit a fund member would receive if his/her membership were notionally to terminate on the date of divorce.

It is possible to assign a rand value to a non-member spouse instead of a percentage of the pension interest, provided that the amount does not exceed the value of the pension interest. It is not fit to award interest on the pension interest allocated to the non-member spouse as this is statutorily regulated in the Act, which provides for growth on the allocated portion. Interest only commences running a few months after the date of divorce, if the allocated pension interest is not paid over within the statutorily prescribed time limits.

It is very important to know exactly what is meant by the term ‘pension interest’ in a divorce settlement that involves handing over retirement savings, whether the savings are:
 
  • in a pension fund or in a provident fund sponsored by an employer, a trade union or an industry association; or
  • a retirement annuity fund or a preservation fund sponsored or authorised by a financial services company.

The reason why it is so important is that pension interest applies only to the aforementioned funds and not to an annuity (a pension) bought at retirement, or to a former fund member’s retirement savings that are held in the fund until the former member retires.

In terms of the Pension Funds Act, a pension/retirement fund is obliged to give the non-member spouse the right to decide how the pension interest award should be paid out, i.e. as a lump sum in cash or reinvested into another retirement fund. On presentation of a valid divorce order, the fund normally has 45 days to request the non-member spouse to decide how the pension interest due to him/her must be paid. The non-member spouse has 120 days in which to make a decision.

When it comes to the pension interest claim, the following needs to be considered:
 
  • Is the fund a preservation fund or not?
  • Should the non-member take his/her award in cash or transfer it to another fund?
  • If taken in cash, how will it be invested?

Pension interest can be excluded in an ANC. If marrying out of community of property with the accrual, the member spouse will need to expressly exclude the value of the retirement annuity or pension fund as at the date of marriage when drawing up the ANC. 

How is pension interest calculated?

Pension interest in a retirement annuity fund is defined in the Divorce Act as ‘the total amount of that party’s contributions to the fund up to the date of divorce, together with a total amount of annual simple interest on those contributions up to that date’. The Pension Fund Act provides that the ‘total amount of annual simple interest payable in terms of the definition may not exceed the fund return on the pension interest assigned to a non-member spouse in terms of a decree granted in terms of the Divorce Act’. So, the non-member spouse is entitled to claim the lower of either annual simple interest (currently at an annual rate of 15.5 per cent) or fund return on the pension interest allocated to the non-member in terms of the divorce order.

The non-member spouse of a pension fund is only entitled to the accrual of fund return on his/her share of the pension interest from when he/she has submitted the court order to the fund and has made an election as to whether his/her share of the pension interest should be paid directly to him/her or transferred into another fund until the date of payment.

In a preservation fund, if a once-off withdrawal has already been made prior to the divorce, the value of the remaining investment (which will usually be represented by the death or disability benefit) can be used to determine the termination value.

Divorce settlement agreements

Citing the fund in the divorce settlement agreement

It is of vital importance that the correct name of the retirement fund is used at all times. Uncertainty as to which fund is intended may result in a situation where the fund will not pay out. Divorce settlement agreements are frequently drafted using the name of the insurance company that manages the pension fund instead of the fund itself. It is not sufficient to refer to the administrator (e.g. Old Mutual or Liberty pension fund), as these financial organisations usually operate numerous retirement funds.
Divorce Orders

The Divorce Order must contain:

(i) A specific reference to “pension interest” must be made as defined in the Divorce Act. If the fund is a preservation fund the order must read “pension interest” as defined in section 37D(6) of Pension Funds Act.

The following will generally not be binding: “pension fund”, “pension benefits”, “joint estate”, “member’s interest in the fund” or the “proceeds of the policy”.

(ii) The name of the Fund.

Where the fund is not named, it must at least be possible to determine from the wording of the order which fund the parties had in mind.

For example, the “fund of the member-spouse’s employer” would be ascertainable but the “Liberty pension fund” is not ascertainable since financial institutions operate several funds.

The Divorce Order must contain:

(iii) A specified percentage or amount of the pension interest must be

provided.

It must be clear from the order how much of the member’s pension interest has been assigned to the non-member spouse.

The following will generally not be binding:
 
  • An order which stipulates that the pension interest must be divided equally will not be considered binding as it does not indicate that 50% of the pension interest has been awarded to the non-member spouse.
  • “Any debts incurred by the non-member spouse after the date of divorce must be deducted from the pension interest” – compliance with a further condition of one of the parties cannot be enforced against the pension interest of a member.

Taxation of pension interest allocations

The non-member ex-spouse will pay the tax on the pension interest if he/she takes the benefit in cash. If it is transferred to another retirement fund, the transfer will be tax-free.

This is a very difficult area, according to the Pension Lawyers Association of South Africa, especially when the pension interest is considerable. Parties are therefore advised to obtain professional advice. The situation has changed several times in the past few years, leading to much confusion. At present, the pension interest deduction is taxable in the hands of the non-member spouse. However, the tax dispensation may vary for divorces already obtained, depending on the date of the divorce and on the date of election in terms of section 37D(4)(b). It is important that the settlement agreement clearly address the tax issue.

Income Tax – Income Tax Act (Second Schedule)

The deduction is made from the member’s minimum individual reserve in the fund at the time of the divorce. The date of the divorce order payment/deduction from the fund determines the tax implications.

Divorce Orders prior to 13 September 2007: Where the deduction was made between 1 Nov 2008 & 1 March 2008, the member was regarded as the taxpayer. The divorce award was taxed at the member’s average rate of tax and tax-on-tax was payable. Where the deduction was made after 1 March 2009, no tax is payable.

Divorce Orders after 13 September 2007: Where the deduction is made prior to 1 March 2009, the member is the taxpayer. The divorce award is taxed at the member’s average rate of tax and tax-on-tax is payable. Where the deduction was made after 1 March 2009, the non-member spouse is the taxpayer. 

Parties cannot enter into an agreement regarding the tax contrary to the tax legislation. If for example the non-member is the taxpayer the parties cannot agree that the member should be treated as the taxpayer. The parties may agree that in determining the quantum of the divorce award, the tax must be deducted from the award prior to the payment to the non-member spouse. Where the member is the taxpayer and the divorce order specifically states that the non-member spouse must be paid a net after tax amount, the tax due by the member must be deducted from non-member spouse’s share before paying him/her. Where tax on the divorce award is paid from the member’s remaining value in the fund, he/she may recover such tax from the non-member spouse. The Income Tax Act does not mention such a right to the member, but the parties are free to come to an arrangement regarding the recovery of tax. The member can however not recover tax-on-tax that was paid from his/her remaining value in a retirement fund. The tax due on the divorce award is regarded as a lump sum accrual in the hands of the member and hence the tax thereon cannot be recovered from the non-member.

How much tax must be deducted?

Taxable Income (R)            Rate of Tax (R)

0 – 25 000                         0% of taxable income
25 001 - 660 000               18% of taxable income above 25 000
660 001 - 990 000             114 300 + 27% of taxable income above 660 000
990 001 and above            203 400 + 36% of taxable income above 990 000

The taxation of an allocated pension interest is complex and both the member and the non-member spouse should seek professional advice in this regard. The taxation of retirement benefits, both before and at retirement, was amended several times in the past few years and may change again in the future. Currently, any allocation of a pension interest subtracted by the fund is taxed in the hands of the non-member spouse. In a case before our High Court a non-member spouse lost approximately R135 000 of her share of a pension interest of R300 000, for the reason that the divorce settlement did not clearly address the tax issue. In terms of the divorce settlement, the non-member spouse was allowed 30% of her ex-husband’s pension interest. The retirement fund paid over her share of about R300 000 and deducted a further R135 000 from her former husband's pensionable interest. The tax deduction was in terms of a provision in the Income Tax Act that, when a non-member spouse’s portion accrued, the member spouse was liable to pay the income tax. The same legislation confers on the fund member a right to recover the tax from the non-member spouse.  In this case, the fund member instituted legal action against his former wife to recover the income tax that he had paid, effectively on her behalf. She disputed liability, contending that, on a proper interpretation of the settlement agreement this was not permissible. Her defence failed and the former husband's claim succeeded. The judge held that her former husband's right to recover the tax paid was not based on contract but arose in terms of legislation. 

 
Bertus Preller & Associates Inc.
Ground Level, The Chambers, 50 Keerom Street, Cape Town, 8000
Telephone: +27 21 422-2461 or +27 21 422-2573 or +27 21 422-2597
Facsimile: +27 086 572 8373
E-mail: info@divorceattorney.co.za or info@preller.co.za
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