A woman married and divorced under Islamic law has a claim against her ex-husband’s pension.

Pension Funds adjudicator Muvhango Lukhaimane said on Tuesday that that her office will not discriminate between people married in terms of Islamic law‚ customary law or civil law. Any differentiation‚ she said‚ “cannot be justified in a democratic and multicultural society as ours”.

“This Tribunal holds the view that it cannot be party to the perpetuation of injustice and discrimination against parties married and divorced in terms of Islamic tenets‚ where it is clear that the legislature intended them to be treated in a similar fashion as parties in civil and customary marriages‚ and where parties have reached an agreement regarding the payment of pension interest and made such an agreement an order of the court.”

She ordered Sanlam Staff Umbrella Pension Fund to reverse its earlier decision not to pay a complainant‚ Z Paulse‚ a 50% share of the pension interest in a divorce settlement.

Sanlam Staff Umbrella Pension Fund and its administrator‚ Sanlam Life Insurance Limited‚ had argued that the couple was not married in terms of the Marriage Act nor the Recognition of Customary Marriages Act‚ but in terms of the tenets of the Islamic religion. They said the Divorce Act did not apply to the dissolution of the Paulse’s marriage in terms of the tenets of the Islamic religion. The pair dissolved their marriage in this way in February 2013.

Sanlam contended that existing legislation would need to be changed before “orders following the dissolution of Islamic marriages may be treated in the same manner as the dissolution of civil and customary marriages”.

The Institute of Retirement Funds has asked the Financial Services Board to discuss this with the Department of Justice.

Lukhaimane said it would not be fair to await the eventual outcome of this process‚ and ordered the company to pay the amount owed to Paulse.

This ruling reiterates a 2012 decision by her office‚ where the adjudicator stated that a spouse in an Islamic marriage is entitled to pension interest allocated in terms of a divorce order.