If I divorce my husband, will he be able to claim 50% of my pension if we are married out of community of property with an antenuptial contract without accrual?

The whole question

Dear Athalie

Thank you for your email asking if your husband, whom you are about to divorce, would be able to claim 50% of your pension, as you are married out of community of property with an antenuptial contract without accrual.

No. Allan Gray explains that the Divorce Act says that where the spouses are married out of community of property without accrual and entered into that marriage on or after 1 November 1984, the non-member spouse has no claim for pension interest from the member’s retirement savings.

Moonstone Information Refinery says that Section 1 of the Divorce Act defines “pension interest” as the notional benefit to which a member would have been entitled in terms of the rules of the fund if his membership of the fund terminated on the date of the divorce on account of his resignation from his office.

In other words, if you are married out of community of property without accrual, each spouse keeps their own assets and there is no claim on the other spouse’s assets.

But this is provided that you married on or after 1 November 1984. 

If you were married out of community of property without accrual and entered into the marriage before 1 November 1984, your husband (the non-member spouse) would be able to go to court to ask for an order for pension interest to be paid from your pension.