key to the study guide - Name

Factors which determine
effect of
divorce on division
of property
Matrimonial property
system
3 THE PATRIMONY OF THE SPOUSES Ð GENERAL
The patrimony of the spouses has to do with their assets and liabilities and
their finances. On pages 128±129 of your textbook it is pointed out that
the effect of divorce on the division of the spouses' property depends on
two things:
(1) the matrimonial property system of the spouses (ie whether they were
married in or out of community and whether the accrual system
applies if they were married out of community)
Forfeiture order (2) whether the court orders forfeiture of benefits (forfeiture of benefits is
discussed in the next study unit)
Role of conduct You must also know what role fault plays in determining the consequences
of divorce. This aspect is discussed on page 129 of the prescribed textbook.
Part of assets upon
divorce
Calculation of pension
interest
Direct payment to
non-member and
endorsement
Shortcomings of the
Act
3.1 Pension interests
When you study the discussion of pension interests on pages 129±131 in
your prescribed textbook you will first see that, as opposed to the previous
position, pension interests are now deemed to be part of a spouse's assets
upon divorce. Make sure that you know why the decision in Sempapalele v
Sempapalele is clearly wrong, and why Maharaj v Maharaj correctly reflects
the present position. These cases are discussed on pages 129±130 in your
prescribed textbook.
Section 1 of the Divorce Act determines how a spouse's pension interest
must be calculated if the spouse is a member of a pension fund, or if the
spouse is a member of a retirement-annuity fund. Also note that the
amount of a spouse's pension interest must be reduced by any part of the
pension interest to which another person is entitled by virtue of a previous
divorce. Make sure that you know exactly how these calculations work.
These calculations are explained on page 130 of the prescribed textbook.
On pages 130±131 in the prescribed textbook it is explained that the court
may order that the pension or retirement-annuity fund must pay any part
of the pension interest which is due to the spouse of a member of the fund
directly to that spouse. The court may also order that an endorsement to
that effect must be recorded in the records of the fund. However, you do
not have to know what section 11 of the Judicial Matters Second
Amendment Act 55 of 2003 provides.
You must also be able to explain the shortcomings of the Divorce Act with
regard to the division of pension interests. These shortcomings are set out
in the second paragraph on page 131.
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