We can’t discriminate against Muslim couples – adjudicator

In the second case of its kind to come before the tribunal of the Pension Funds Adjudicator in just over three years, the adjudicator, Muvhango Lukhaimane, has reiterated that a person married under Islamic law is entitled to a share of his or her spouse’s pension on divorce.

The respondents in each case – the retirement funds involved and their administrators – had refused to divide the pension interest of the member spouse. They cited section 7 of the Divorce Act, which states that a member’s pension interest forms part of his or her assets in a marriage only if the union is in community of property or out of community of property with accrual; that is, if the couple was married under the Marriage Act, Civil Union Act or the Recognition of Customary Marriages Act.

Although a court order to divide the couple’s assets following the dissolution of the marriage was obtained in each case, the retirement funds claimed that such an order did not constitute a divorce order under either the Divorce Act or the Pension Funds Act, because such an order could not apply to a marriage under the tenets of Islamic law.

In the more recent case, the complainant, Ms P, claimed half of her ex-husband’s pension interest (his accumulated pension benefit) in the Sanlam Staff Umbrella Fund. Her marriage was dissolved under Islamic law in February 2013, and the divorce and settlement agreement between the parties was made an order of the Western Cape High Court in February 2014.

The Sanlam fund and its administrator, Sanlam Life Insurance, agreed that, under the recently amended Pension Funds Act, a marriage under Islamic law was recognised for the sake of paying a pension interest (see “Status of partners in Islamic marriages”, above right).

They contended, however, that if the intention of the amendment was that it should be possible to obtain divorce orders for Islamic marriages, there were many other provisions in the Pension Funds Act, the Income Tax Act and the Divorce Act that required amendment before these orders could be treated in the same manner as those following the dissolution of civil and customary marriages.

There are moves among legislators to amend the statutes in question, and Sanlam suggested that Ms P could resubmit her claim once these amendments were in place.

Sanlam also held that, in 2012, the Pension Funds Adjudicator at the time, Dr Elmarie de la Rey, had made a wrong decision in the landmark first case involving a divorcing Islamic couple to come before the adjudicator, Tyron v Nedgroup Defined Contribution Pension and Provident Funds and Another. In that case, a woman had succeeded in claiming a portion of her spouse’s pension interest.

DETERMINATION

In her deter mination, Lukhaimane says the issue of the non-recognition of Islamic marriages was brought to the scrutiny of the Constitutional Court in the matter of Daniels v Campbell NO and Others 2004.

The case hinged on the meaning of the word “spouse”. The judge observed that “spouse” in its ordinary meaning included parties in a Muslim marriage. This was how the word was generally understood and used.

Lukhaimane says that, in the Tyron case, the tribunal held that the member spouse’s retirement fund had to pay the non-member spouse if the agreement reached between the parties regarding the division of the pension interest stated as much and had been made an order of court.

She says that, while she welcomed Sanlam’s concern about the need to make amendments to relevant pieces of legislation, it was the tribunal’s view that the intention of the legislature is to accord couples married under Islamic law equal treatment to that granted to couples in civil and customary marriages in so far as dealing with patrimonial assets following the dissolution of a marriage is concerned.

“Were this tribunal to accede to the request of the respondents for [Ms P] to wait until amendments were made to the relevant pieces of legislation, it would be perpetuating a differentiation which cannot be justified in a democratic and multi-cultural society such as ours.

“This tribunal holds the view that it cannot be party to the perpetuation of injustice and discrimination against parties married and divorced in terms of Islamic tenets,” Lukhaimane says.

The Sanlam fund and Sanlam Life Insurance were ordered to compute the amount owing and pay the complainant her share of the pension interest as stipulated in the couple’s settlement agreement.