The clean break principle on sharing pension interest upon divorce in South Africa is not as clean as a whistle

Abstract

This study explores the historical treatment of pension benefits preceding the introduction of the clean break principle. It delves into the developments leading to the codification of this clean break principle concerning pension interest in divorce proceedings and examines court interpretations. The research evaluates the effectiveness of the legislation in granting divorce orders to non-member spouses for enforcement against pension funds. While the legislative intent is to provide a clean slate for non-member spouses after divorce, the Divorce Act amendment did not initially allow immediate pension interest claims. Subsequent changes to the Pension Funds Act addressed the claim for immediate payment. However, inconsistencies in interpreting the legislation persisted until the Supreme Court of Appeal clarified the issue of entitlement of the non-member spouse. Despite these advancements, unresolved legal questions create hardships for non-member spouses which highlights the need for legislative reform based on the conclusions and recommendations of this study.