VIASEN SOOBRAMONEY
IF YOU’RE Muslim and in an Islamic marriage, you could be entitled to a share of your spouse’s pension in the event of a divorce.
This follows a decision by the Pension Funds Adjudicator to rule in favour and recognise an Islamic divorce procedure of a complainant who did not receive a portion of her spouse’s pension.
Tanya Yasmine Tryon complained that Nedgroup Defined Contribution Pension and Provident Funds failed to pay her portion of the pension interest allocated to her in terms of a divorce order.
According to a statement released by The Pension Funds Adjudicator, Tyron’s marriage was dissolved in September 2007 in terms of tenets of the Islamic religion. In terms of the settlement agreement, Tyron was entitled to 50% of the value of the fund, calculated from the date of inception, to September 2007, being the date of the fasakh (ending of the Islamic marriage) and although not registered as a civil marriage, the complainant had every right to be considered as a spouse for the purposes of payment of pension interest.
This decision will no doubt stir up debate as to whether the dissolving of Islamic marriages according to the tenets of Islam could be recognised as a divorce by South African courts.
Minimal
Moulana Abdullah Khan of the Jamiatul Ulama KZN said while he welcomed the decision, the impact on the Muslim community would be minimal. “The Adjudicator’s determination is not one which we expect to have any significant impact on the Muslim community, as it does not set any form of binding precedent on any court. The community will have to wait and see how the courts take a more informed and researched position on this pending question,” he said.
He added that it was debatable whether the dissolution of an Islamic marriage could be deemed to be a divorce in terms of the Divorce Act.
“The present matter does not deal with the recognition of Islamic law or its application within the secular context. What we have in this case is the application of the laws of contract.”