A Critical Legal Analysis of the Effect of the Proposed ‘Two-Pot System’ on Spouses in Unregistered Customary Marriages in South Africa

Abstract For the first time in the history of South African pension laws, a system is proposed that will enable pension fund members to access a portion of their pension benefits while still actively employed. The proposed system seeks to provide pension fund members with financial relief without requiring them to quit their jobs due to financial strain. This paper commends the government’s initiative in response, among others, to the financial problems caused by the coronavirus disease (COVID-19) pandemic. This paper argues, however, that despite the potential beneficial effects the system may have on pension fund members, it may introduce new challenges that pension fund stakeholders have never faced before. This paper aims to highlight a potential defect in the proposed system, particularly in cases where pension benefits are included in the joint estate of a pension fund member. South African customary marriages, whether or not they are registered, are by default in community of property. The pension benefits of a member who is a spouse in these marriages form a part of the joint estate. This paper examines and proposes solutions to the challenges that the proposed system may present to spouses in unrecorded customary marriages.