The question of whether a maintenance obligation survives the death of the person paying it continues to challenge pension fund trustees in Namibia. This issue frequently arises during death-benefit allocations, particularly where an ex-spouse was receiving maintenance under a divorce order. This article explores the legal position under South African and Namibian law and considers the implications of the new Dissolution of Marriages Act, 2024.

The South African Position

At common law, the duty of support between spouses ends upon divorce or death. Section 10(1) of the Matrimonial Affairs Act 37 of 1953 first allowed courts to order maintenance beyond divorce. This principle was carried into section 7 of the Divorce Act 70 of 1979, which remains foundational in South African divorce law.

Section 7(1) allows a written settlement agreement (including maintenance clauses) to be made an order of court. Section 7(2) allows the court to grant a discretionary maintenance order where no agreement exists.

A key distinction:
A section 7(2) order ends on the payer’s death.
A section 7(1) settlement agreement may survive death if the parties expressly agreed to bind the estate.

In Kruger NO v Goss, the SCA confirmed that the maintenance obligation ceases with the payer’s death unless the settlement agreement expressly extends liability beyond death. Where such wording exists, the duty is enforceable against the estate as a contractual obligation, not as a continuation of the common-law duty of support.

However, Muller v Central Retirement Annuity Fund clarified a crucial point for pension law: Even if a maintenance order does not survive death and creates no claim against the estate, an ex-spouse may still qualify as a dependant under section 37C of the Pension Funds Act if dependency, legal or factual existed at the time of death. Pension benefits fall outside the estate and must be distributed in accordance with the dependency framework.

The Namibian Position
Namibian common law mirrors South Africa’s: the duty of support ends upon divorce or death. The Dissolution of Marriages Act, 2024 modernises divorce law and empowers courts to make or confirm maintenance orders or written settlement agreements.

The Act does not itself extend the duty of support beyond death. As in South Africa, a maintenance obligation survives death only if the parties expressly agree to bind the payer’s estate. Such an agreement is enforceable against the estate as a contractual debt.
But importantly, this estate-law position does not determine dependency status under the Pension Funds Act.

Pension Fund Death Benefits and the Concept of a Dependant
Under section 1 of the Pension Funds Act, a “dependant” includes any person:

• to whom the deceased was legally liable for maintenance;
• whom the deceased was in fact maintaining; or
• who would have become legally liable to maintain had the member not died.

Section 37C requires trustees to identify all dependants and allocate the death benefit equitably.Pension benefits do not form part of the estate, and estate-law principles do not control dependency analysis.

A crucial implication follows:
If a s 7(1) settlement agreement made an order of court obliges the deceased to maintain an ex-spouse until death or remarriage, this creates a legal duty of support that exists at the moment of death.

 

The fact that the obligation survives death only as a contractual claim against the estate does not alter its status under section 37C: the deceased was legally liable for maintenance immediately before death. Legal dependants do not need to prove factual support, only the existence of a legal obligation at death.

Where no such legal duty exists, e.g., a section 7(2) rehabilitative order that lapses on death, the ex-spouse may still qualify as a factual dependant, depending on actual reliance at the time of death.

Implications for Trustees and Members
For trustees, the distinction between estate liability and dependency liability under section 37C is essential:

A maintenance clause that survives death contractually binds the estate, not the pension fund. Under section 37C, the question is whether a legal duty of support existed at the time of death and not whether that obligation survives beyond death.

Ex-spouses whose maintenance obligations under a s 7(1) settlement were still active at death qualify as legal dependants, subject to terminating conditions in the agreement (e.g., remarriage).
Where no legal duty existed, trustees must assess factual dependency.
For members, clarity is critical. If continued support after death is intended, the settlement agreement must expressly say so and be incorporated into the divorce order.

Conclusion
In Namibia, as in South Africa, maintenance obligations end on death unless expressly extended by agreement. Such clauses bind the estate, but their enforceability is contractual. However, for purposes of the Pension Funds Act, the decisive question is whether a legal duty of support existed at the moment of death.

As 7(1) settlement agreement incorporated into a court order, requiring maintenance until death or remarriage, creates such a legal duty. Accordingly, the ex-spouse may qualify as a legal dependant under section 37C, independently of whether the estate remains contractually liable. Trustees must therefore differentiate clearly between estate claims and pension dependency, ensuring that genuinely dependent ex-spouses are recognised and treated equitably.