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Unmarried couples & pensions

Normally after a divorce a court order would state that one spouse is entitled to 50% of the pension of the other spouse, particularly when they are married in community of property. The question however arises as to whether permanent life partners are entitled to their spouse’s pension.

The Pension Funds Act 24 of 1956 states that a “spouse” is a married person or any person who was not married to the member, but whose romantic relationship with the member of the fund is regarded as a “permanent life partnership” akin to marriage. This however only applies for purposes of distributing lump sum benefits. Nothing in the Act requires that if a fund’s rules grants a spouse’s pension on the death of a member, a “spouse” must also include a “permanent life partner” who is not married to the spouse.

In 2005, the Constitutional Court in Volks N.O. v Robinson & Others the court decided there was no unfair discrimination if a pension fund did not wish to pay out to any party who was unmarried but who had the choice to marry. Section 9 of the Constitution deals with unfair discrimination, and the court found that this clause had not been violated. The court found that if you choose not to exercise your option to get married, then you can’t later derive benefits as if you were married.

However in 2009 in the decision of Smith AJ v Eskom Pension & Provident Fund, the court had a different viewpoint on the matter. Eskom had failed to pay out to somebody on the basis that that party was not legally married. The court found that this was indeed a violation of section 9 of the Constitution and that there was unfair discrimination on the basis of marital status.

I personally am more in favour of the Smith decision. An unmarried couple in my opinion have the same constitutional rights as a married couple when it comes to pension payouts, and deserve not to be unfairly discriminated against.

What is particularly interesting about the Smith case is that the Pension Fund’s Adjudicator made it clear in her decision that marriage as an institution should not be privileged over other permanent life partnerships. Our law in 2008 furthermore published the Domestic Partnership Bill, which seeks to provide protection to “domestic partnerships”. It is proposed in the Bill that people in registered domestic partnerships will have legal protection at termination of the partnership in relation to property division, maintenance, and children. The Bill also protects those who have not registered their domestic partnerships.

It appears to be a real breakthrough in our legal system that finally domestic partnerships are gaining some form of constitutional recognition. This is in line with the democratic values entrenched in our Constitution.


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