South Africa Law

Get your South African law questions answered by Experts

Ask a Lawyer,
Get an Answer ASAP!

Divorce: In community of property. I understand all the

Customer Question
Divorce: In community of...

Divorce: In community of property. I understand all the entitlements ito the DA and PFA. We want to settle and our attorneys are drafting the agreement. Both my wife and I have pension fund interests. My wifes pension benefit is much larger than mine. The attorneys say that only the net assets must be included in the calculation of the joint estate (prior to division). I argue that this is not equitable considering that she will be allowed to subtract a much larger portion of "tax" from the deemed benefit, ie. her portion is reduced substantially. I argue that I have the right to decide whether I want the cash from her pension fund (50%), or transfer it to another pension fund tax free. I am thus entitled to 50% of the gross benefit of her pension interest. She is similarly entitled to the 50% of my pension interest. So, for pension fund divisions / distributions, gross benefits must be used. The attorneys argue that this is not how the courts are looking at it. We are actually not going to claim on each others pension funds - it is only for calculating the joint estate value. The other assets will be used to equalise. Thank you

Lawyer's Assistant: Because family law varies from place to place, can you tell me what state this is in?

Gauteng, South Africa

Lawyer's Assistant: Have you talked to a lawyer yet?

Yes

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

No, only want to know whether gross or net (after tax) pension interests should be used in calculating the joint estate

Submitted: 8 months ago.Category: South Africa Law
Show More
Show Less
Ask Your Own South Africa Law Question
Customer reply replied 8 months ago
When can I expect an answer please.
Answered in 14 hours by:
12/12/2017
Lawyer: CaseLaw, Attorney replied 8 months ago
CaseLaw
CaseLaw, Attorney
Category: South Africa Law
Satisfied Customers: 1,711
Experience: BCom; LLB; Masters in Law
Verified

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will try to assist you with your legal question but please feel free to ask as many follow up questions in order to clarify your initial question. If you have a new question, you must please open a new thread.

Please keep in mind that our conversation does not include an attorney-client relationship and this is for general information purposes only. Additionally, most people believe a phone call is the easiest and most efficient way to handle problems. Accordingly, you will receive an automatic phone call request. If you would like a phone call, please click “Accept” when prompted.

Do you mind if I take a moment to review your question? I will come back to you shortly!

CaseLaw

Ask Your Own South Africa Law Question
Lawyer: CaseLaw, Attorney replied 8 months ago

There are some excellent articles available online which answer your question. Rather than me copy/pasting portions of the articles, it might be easier if I just send you the links.

https://www.iol.co.za/personal-finance/retirement/splitting-a-pension-on-divorce-1218453

https://divorceattorneys.wordpress.com/tag/divorce-settlement-agreement/

http://www.pkf.co.za/capetown/news/2015/retirement-funds-and-divorce-the-tax-implications/

Ask Your Own South Africa Law Question
Customer reply replied 8 months ago
Thank you. Further info (for the sake of simplicity). My pension benefit R1 000 000 her benefit R2 000 000. Married in COP.We are both entitled to 50% of the other's pension interest. I can decide if I want to receive my entitlement from her pension fund in cash - if this is my option, I pay the tax on it according to the lump sum withdrawal table. The same applies to her. If we decide not to take the cash but transfer the entitlement to our own respective funds - no tax until we either withdraw or retire? Is this correct? If so then the attorneys are wrong to say that the value of the estate is based on the after-tax pension interests. The value of the estate is R 3 000 000 in this case (if the pension interests are the only assets) - NOT R3 000 000 Less tax?The www.pkf.co.za is incorrect - that was a prior dispensation.
Lawyer: CaseLaw, Attorney replied 8 months ago

We are both entitled to 50% of the other's pension interest. I can decide if I want to receive my entitlement from her pension fund in cash - if this is my option, I pay the tax on it according to the lump sum withdrawal table. The same applies to her. If we decide not to take the cash but transfer the entitlement to our own respective funds - no tax until we either withdraw or retire? --> yes, exactly.

If so then the attorneys are wrong to say that the value of the estate is based on the after-tax pension interests. The value of the estate is R 3 000 000 in this case (if the pension interests are the only assets) - NOT R3 000 000 Less tax? --> yes, exactly. The reason for this is because your income tax rate (marginal rate) might be different to somebody else's, so how can you calculate the after tax figure exactly? Everyone deals with the actual value of the benefit.

Ask Your Own South Africa Law Question
Was this answer helpful?

How JustAnswer works

step-image
Describe your issueThe assistant will guide you
step-image
Chat 1:1 with a lawyerLicensed Experts are available 24/7
step-image
100% satisfaction guaranteeGet all the answers you need
Ask CaseLaw Your Own Question
CaseLaw
CaseLaw
CaseLaw, Attorney
Category: South Africa Law
Satisfied Customers: 1,711
1,711 Satisfied Customers
Experience: BCom; LLB; Masters in Law

CaseLaw is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help.

Mary C.Freshfield, Liverpool, UK

< Previous | Next >

Meet the Experts:

PHINEAS MOTAUNG

PHINEAS MOTAUNG

Attorney

113 satisfied customers

BACHELOR OF LAWS

Emil

Emil

Attorney

33 satisfied customers

BCom Law LLB, 3 years post article experience as attorney

LCP

LCP

Attorney

21 satisfied customers

BCom (Stell) LLB LLM

Freddie Lombard

Freddie Lombard

Attorney

2,811 satisfied customers

Practicing attorney and conveyancer with 16 years post article experience.

Shaie Zindel

Shaie Zindel

Attorney

1,249 satisfied customers

All areas of commercial and contract Law - specialist in property advice.

inciteadvisor

inciteadvisor

Commercial Lawyer

814 satisfied customers

B.Com LLB Registered Corporate lawywer

Christiaan K

Christiaan K

226 satisfied customers

Attorney & Director at Lombard Kotze Incorporated

< Previous | Next >

Related South Africa Law Questions
I have been married ANC with Accrual for 15 years. My wife
I have been married ANC with Accrual for 15 years. My wife now wants a divorce citing incompatibility and wants half of all we own including my pension of 30 years, even though we have only been marri… read more
JW Fourie
JW Fourie
Attorney
Bachelor\u0027s Degree
6,698 satisfied customers
The wife entitled to sum equal to one third of husbands pension
The wife entitled to sum equal to one third of husbands pension benefits with then current employer (government/ dept Nature Conservation) calculated for the period commenced date of marriage to final… read more
inciteadvisor
inciteadvisor
Commercial Lawyer
Post graduate degree- LLB
814 satisfied customers
Hi, Am helping my business partner who is responding to his
Hi, Am helping my business partner who is responding to his wifes request for a divorce, this questions relates to the accrual system and how an ANC affects it Background Married in Community Of Prope… read more
JW Fourie
JW Fourie
Attorney
Bachelor\u0027s Degree
6,698 satisfied customers
I was in married in 1988 terms of an accrual arrangement. To
I was in married in 1988 terms of an accrual arrangement. To my knowledge, everything that has been accrued since then will be split on a 50/50 basis. I found out that my wife had an extra-marital aff… read more
JW Fourie
JW Fourie
Attorney
Bachelor\u0027s Degree
6,698 satisfied customers
hi me and my wife is about to get an divorce i wana know if
hi me and my wife is about to get an divorce i wana know if i must pay her maintenance i am a contract worker we have no children together i am willing to give her everything the household and the car… read more
inciteadvisor
inciteadvisor
Commercial Lawyer
Post graduate degree- LLB
814 satisfied customers
My wife always arguse that the cc does not divorce, it is the
My wife always arguse that the cc does not divorce, it is the people that divorce. In the case of divorce, when do we dissolve the cc? is it during the settlement arguments or what. She also argues th… read more
inciteadvisor
inciteadvisor
Commercial Lawyer
Post graduate degree- LLB
814 satisfied customers
Hi. When dividing up the family assets in divorce is the basic
Hi. When dividing up the family assets in divorce is the basic principle that half goes to each spouse? Or are there criteria that one uses to decide who gets what proportion? If the latter what are t… read more
dclabm
dclabm
Advocate
Bachelor's Degree
46 satisfied customers
My mother who is 66 years of age has been seperated now for
My mother who is 66 years of age has been seperated now for 3 years is trying to get divorced. Her husband is refusing to get divorced as he does not want to part with his assets. He has been paying a… read more
dclabm
dclabm
Advocate
Bachelor's Degree
46 satisfied customers
Advies vir binnegemeenskap van goedere egskeiding. Waarop is
Advies vir binnegemeenskap van goedere egskeiding. Waarop is die vrou en kind geregtig? Ons het besluit ons deel alles 50/50. Wat is my regte ten opsigte van sy pensioen en werks voordele? Ons was 17 … read more
inciteadvisor
inciteadvisor
Commercial Lawyer
Post graduate degree- LLB
814 satisfied customers
I have been married ANC with accrual for 10 years. Two years
I have been married ANC with accrual for 10 years. Two years ago my wife cashed in her pension fund and paid it into the bond in order for her not to work. I continued to pay the outstanding bond for … read more
inciteadvisor
inciteadvisor
Commercial Lawyer
Post graduate degree- LLB
814 satisfied customers
Who is responsible for the payment of interest as per law 55
Who is responsible for the payment of interest as per law 55 of 1975 regarding pension funds on divorce.Since the law changed in 2007 regarding the payout of the non member pension interest, my pensio… read more
JOHANN
JOHANN
Master's Degree
3,396 satisfied customers
My wife and I are in process of getting divorced. 1. How
My wife and I are in process of getting divorced. 1. How are immovable assets split?. Is there a general rule of thumb which can be applied as I prepare the list of immovable assets. 2. Does my wife h… read more
JW Fourie
JW Fourie
Attorney
Bachelor\u0027s Degree
6,698 satisfied customers
Please advise in terms of enforcable asset or rather debt distrubution
Please advise in terms of enforcable asset or rather debt distrubution based on only the following mentioned facts:(divorce) 1]Married in community of property since 1983 2]Debt against wife name R100… read more
JOHANN
JOHANN
Master's Degree
3,396 satisfied customers
I am currently married in an antenuptial contract with the
I am currently married in an antenuptial contract with the application of the accrual system and am now getting divorced. Our Joint “Assets are estimated at R2 000 000. However at the commencement of … read more
Mike Otis
Mike Otis
Master's Degree
1,508 satisfied customers
Wel net graag inligting bekom, is reeds in 2004 geskei. Is
Wel net graag inligting bekom, is reeds in 2004 geskei. Is nie behoorlik deur my prokureur ingelig oor my regte i.v.m. pensioen voordele nie. ons finale ooreenkoms meld dat daar geen verdere eise sal … read more
JP
JP
Bachelor
590 satisfied customers
I have been married for 30 years out of community of property
I have been married for 30 years out of community of property (before 1984) and have been seperated from my wife for two years. She is dragging the divorce case out for as long as possible so that she… read more
CaseLaw
CaseLaw
Attorney
Master's Degree
1,711 satisfied customers
if iwas married in sa in the 1982 is my wife still entitled
if iwas married in sa in the 1982 is my wife still entitled to half my pension if we get divorced… read more
CaseLaw
CaseLaw
Attorney
Master's Degree
1,711 satisfied customers
Hi there, will you be able to give some advise on divorce issues I
Hi there, will you be able to give some advise on divorce issues? I have a family member that has been married ANC with accrual, the husband has been contributing 99% of everything they have, he does … read more
Barendb
Barendb
Master's Degree
777 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x