Possible reasons why a retirement fund may not be able to make payment to my ex-spouse

The Supreme Court of Appeal has confirmed (in Old Mutual and Sanlam v Swemmer) that divorce orders must be worded very carefully to ensure that they comply with the requirements, the fund will not be able to pay your ex-spouse.

Here are some of the common reasons why divorce orders are found to not comply with the requirements: 

	Issue	Example	Why is it problematic?
1	You belong to a pension fund and a provident fund and the divorce order does not make it clear whether the order is in respect of both funds or only one of them and, if so, which one.	“The Plaintiff is a member of the A Fund and the B Fund. The Defendant is entitled to 50% of the Plaintiff’s pension interest in the fund and the fund is ordered to make payment to the Defendant.”	If it is not clear which fund(s) has been ordered to make payment to your ex-spouse.
2	No retirement fund has been named in (nor is one identifiable from) the divorce order.	“the Plaintiff’s pension fund” “the fund to which the Plaintiff belongs”	If no fund has been named in (or if no fund is identifiable from) the divorce order.
3	The name of the fund stated in the divorce order is so vague that it may relate to any one of a number of funds.	“Sanlam Provident Fund” “Sanlam Umbrella Fund”	If it is not clear which fund has been ordered to make payment to your ex-spouse.
4	The portion of pension interest awarded to your ex-spouse is not clear.	“any portion” “50% or such portion as the court deems just”	If the portion of pension interest awarded to your ex-spouse is not clear.
5	It is not clear whether the intention was to award to your ex-spouse a portion of your “pension interest” (as defined in the Divorce Act) or a portion of some other value/benefit.	“Plaintiff’s fund value” “Plaintiff’s pension” “Plaintiff’s pension interest calculated from date of marriage to date of divorce” “Plaintiff’s pension fund interest” “Plaintiff’s provident fund interest” “Plaintiff’s provident interest” “Plaintiff’s interest” “Plaintiff’s pension benefit” “Plaintiff’s fund number 123456”	If the divorce order awards something other than “pension interest” to your ex-spouse.
6	It is not clear what has been awarded to your ex-spouse.	“50% net after tax of the Plaintiff’s pension interest” “50% of the Plaintiff’s pension interest, after tax” “50% of the Plaintiff’s net pension interest”	The Pension Funds Adjudicator has confirmed in determinations that this type of wording is ambiguous. If it is not clear what has been awarded to your ex-spouse.
7	It is not clear whether you or the relevant fund is to make payment to the ex-spouse.	“the Plaintiff will make payment to the Defendant”	If it is not clear that the relevant fund (and not you) is to make payment to your ex-spouse.
8	The relevant fund has not been ordered to make payment to your ex-spouse.	“to be paid to the defendant” “which is payable to the plaintiff” “must be paid directly to the plaintiff”	If it is clear that payment is to be made to your ex-spouse, but it is not clear that such payment must be made by the relevant fund.
9	The relevant fund has been ordered to endorse its records, but has not been ordered to make payment to your ex-spouse.	“The fund is to make an endorsement to reflect the ex-spouse’s entitlement.”	The Pension Funds Adjudicator has confirmed in determinations that an order for a fund to endorse its records is insufficient; the relevant fund must be ordered to make payment to your ex-spouse.