There has recently been some social media chatter where aggrieved wives are complaining that the girlfriend of their deceased husband has been paid out a portion of his retirement benefit.

In one case the girlfriend was married to another man yet was being financially supported by her married lover. In another case a woman lived with her life partner with whom she was having a baby, yet the retirement fund paid a portion of the benefit to his previous partner because they had been married under customary marriage and the marriage had never been dissolved.

The payment of benefits from a deceased’s retirement fund is a contentious issue.

Under section 37C of the Pension Funds Act, the trustees of the retirement fund must allocate the benefits based on factual and legal dependency. They have 12 months to investigate all claims.

While legal dependency may be easy to determine (for example, if there is a court order to pay maintenance to an ex-spouse and/or minor children), financial dependency is often more challenging to ascertain.

As David Thomson, Senior Legal Adviser at Sanlam Trust explains, dependency applies to numerous types of relationships. A dependant includes a spouse who, irrespective of the financial position of the spouse, would qualify for a portion of the retirement benefit.

A child would have a claim as a legal dependant even if the child was born outside of a formal relationship or was adopted. Anyone else who was dependent on the retirement fund member for financial support would have a claim. This could include girlfriends or parents.

Thomson says while trustees must consider all factual or legal dependants, they have discretion in the amount they allocate per dependant. The Act refers to what “may be deemed equitable.”

For example, if the spouse was financially well-off and the children were still young, the trustee might allocate a higher percentage to the minor children. If an elderly parent had a claim based on support they received, the trustee would consider the extent of that support and the life expectancy of the parent.

Who might have a claim on your retirement benefit?

Claims by adult children: Adult children do have a claim if they were financially dependent on the deceased for maintenance. They may also have a claim if they are listed as beneficiaries on the nomination form. However, the trustees would be required to consider other dependents and their relative financial dependency.  If, for example, the spouse was financially dependent on the deceased, the trustees would consider the spouse’s claim before that of adult children.

Child outside of marriage: In cases where a child is born outside of the marriage, it is not uncommon for the family to contest the legitimacy of the child and require a paternity test. Thomson says that while trustees may request a paternity test, if the mother refuses to have the test and can prove that the father provided for the child, they would probably consider the child a dependant.

Separated but still married: Thomson says in the case where a wife is estranged, she still has a claim on the retirement fund. A case was brought to the Pension Funds Adjudicator where the daughters contested a benefit paid to their late father’s wife as the couple were separated and did not live together, and he had nominated them as beneficiaries. The PFA dismissed the daughters’ claim because the couple were still legally married and the estranged wife was dependant on the deceased for maintenance. Thomson says the trustees would have considered that the couple had been married for 53 years and had only been separated for 4 months.

Lobola has been paid: While a spouse married under customary law is considered a legal dependant, Thomson says a traditional ceremony concluding the marriage would need to have taken place. There are many situations where lobola has been paid but the couple decided not to go ahead with marriage and the relationship ended. In this case the trustees would not consider the couple as married, unless they were living together as ‘permanent life partners’, in which case he/she would qualify as a ‘spouse’

Girlfriend is married: Thomson says that even if the girlfriend of the deceased is married to someone else, the trustees would be obliged to consider financial dependency. It could be that her husband is not supporting her financially and she was relying on the deceased for maintenance.

Claim of a life partner: A permanent life partner is defined  in terms of our Pension Funds Act as a  “spouse”. However, it would need to be shown that the couple were living together and considered the relationship as permanent. Thomson says to remove any dispute, it is best to have a life partnership agreement in place. The member should also nominate the life partner on the retirement form and specify that they are life partners.

Claim of unborn child: The Act stipulates that a dependant can also be a person to whom “the member would have become legally liable had they not died.” This would apply in the case of an unborn child. Even if the father passed away before they were born, at birth the child would have a claim on the deceased father’s retirement fund. Thomson says this clause could also apply if, for example, the member passed away just before he or she was due to get married. In this case the fiancé could have a claim as a spouse.

No dependants: If no dependants are found, the trustees will pay the benefits to the designated nominees (beneficiaries nominated by the deceased member during his or her lifetime). However, if the member’s estate is insolvent, the Act provides that the shortfall shall first be paid to the deceased estate before the nominees receive anything.

If you are not happy with the ruling of the retirement fund you have the right to appeal to the Office of Pension Funds Adjudicator.

For general enquiries or to lodge a complaint visit www.pfa.org.za, call 012-346-1738 or email enquiries@pfa.org.za

In the case of the Government Employees Pension Fund, one can lodge a complaint with the GEP Ombud via the website, email (enquiries@gepo.co.za) or telephone (012-110-4950).

This article first appeared in City Press.