The Constitutional Court has confirmed a ruling by the High Court in Gqeberha that struck down a provision of the Divorce Act preventing pension interest from forming part of certain asset-redistribution claims on divorce.
The ruling applies to qualifying redistribution claims involving marriages concluded on or after 1 November 1984 under antenuptial contracts excluding community of property, community of profit and loss, and the accrual system. It does not reopen finalised divorce proceedings or matrimonial estates that have already been wound up.
Section 7(7)(c) of the Divorce Act prevented pension interest from being deemed part of a spouse’s assets when the patrimonial consequences of divorce were determined in these marriages. The Constitutional Court confirmed the provision’s invalidity with immediate effect on 9 October 2026. Pension interest may therefore now be considered with the other assets in a qualifying redistribution claim.
“Pension interest” has a specific meaning under the Divorce Act. For a member of a pension fund other than a retirement annuity fund, it is the benefit the member would have received under the fund’s rules if membership had ended because of resignation on the date of divorce. The Act uses a different calculation for RA funds. Pension interest should not automatically be equated with the member’s eventual retirement benefit.
What a spouse must prove
A redistribution order allows a divorce court, in defined circumstances, to transfer some or all of one spouse’s assets to the other.
Section 7(3) of the Divorce Act permits such an order where the spouses have not agreed on the division of their assets and the other statutory requirements have been met.
The applicant must show that they contributed directly or indirectly to maintaining or increasing the other spouse’s estate during the marriage. The contribution may have taken the form of providing services, saving expenses that would otherwise have been incurred, or contributing in another manner.
The court must be satisfied that a transfer would be just and equitable. In deciding what should be transferred, it must consider the parties’ existing means and obligations, donations made between them, other orders affecting their financial positions, and any other relevant factor.
Domestic work, caring responsibilities, paying household expenses, or supporting the other spouse’s career or business may be relevant, but the applicant must provide evidence showing how the contribution maintained or increased the other spouse’s estate. A difference in the spouses’ wealth is not, by itself, sufficient to establish the statutory requirements for redistribution.
Although the constitutional challenge focused on the exclusion’s disproportionate effect on women, section 7(3) permits either party to the marriage to apply for redistribution.
The gap left by the 2023 judgment
The latest judgment closes a gap left by the Constitutional Court’s 2023 decision in EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others.
Before that decision, the redistribution remedy in section 7(3) was generally limited to qualifying marriages concluded before 1 November 1984. Spouses who entered the same type of marriage on or after that date were excluded.
The Constitutional Court found that the date-based exclusion disproportionately disadvantaged women and amounted to unjustifiable indirect discrimination based on gender. It suspended its declaration of invalidity to give Parliament time to address the defect.
As interim relief, the Court ordered that section 7(3)(a) be read without the words confining redistribution to marriages concluded before the Matrimonial Property Act came into operation. This enabled qualifying spouses in post-1984 marriages out of community of property without accrual to apply for redistribution.
But section 7(7)(c) continued to exclude pension interest in these marriages. A divorce court could consider the member spouse’s other assets for redistribution but had to leave out the pension interest. This was the remaining obstacle addressed by the 2026 judgment.
Why the ruling matters
The Constitutional Court considered evidence that retirement savings constitute a significant component of individual estates and that women generally have lower pension provision than men.
Women’s earnings may be absorbed by household expenses while their spouses devote more financial resources to retirement provision. The Court said unpaid domestic labour and domestic expenses are disproportionately borne by married women, which may enable their husbands to devote more time to career advancement and more money to their pensions.
These direct and indirect contributions may be examined when a divorce court decides whether redistribution would be just and equitable. Their existence and effect must be established on the evidence in each case.
The ruling matters because section 7(7)(c) required the court to disregard pension interest solely because the marriage was concluded on or after 1 November 1984. Removing the provision allows pension interest to be considered together with the other assets subject to a qualifying redistribution claim.
It does not establish equal division as a starting point, prescribe a percentage, or guarantee that the applicant will receive any of the pension interest. The court must apply the existing redistribution requirements to the facts of the marriage.
How the case reached the Constitutional Court
The applicant, referred to as Mrs D in the judgment, married Mr D in April 2004. Their marriage was out of community of property without accrual.
She instituted divorce proceedings in October 2020 and sought a redistribution order that included his pension interest.
Mrs D alleged that, although she undertook profitable business projects during the marriage, her focus was managing the family and supporting Mr D’s business and personal endeavours. She said this materially contributed to maintaining and growing his estate.
Mr D disputed her entitlement to redistribution. He contended in the divorce proceedings that he had not maintained her during the marriage and that she had not contributed to his estate.
Mrs D separately challenged section 7(7)(c). The High Court in Gqeberha declared the provision unconstitutional because it irrationally differentiated between pre- and post-1984 marriages and indirectly discriminated against women.
Under the Constitution, a High Court order declaring an Act of Parliament invalid has no force unless the Constitutional Court confirms it. The matter therefore proceeded to the Constitutional Court, which independently considered whether the declaration should be confirmed and what remedy should follow. Mr D did not participate in the constitutional proceedings before either court.
The Constitutional Court did not decide whether Mrs D had proved her alleged contribution or was entitled to a transfer of assets. Those questions remain for the court hearing the divorce.
Why the exclusion was unconstitutional
The 2023 KG judgment extended the section 7(3) redistribution remedy to qualifying marriages concluded on or after 1 November 1984. But section 7(7)(c) continued to exclude pension interest in those marriages.
The Constitutional Court described this exclusion as “vestigial”, meaning it was a remnant of the former legal framework. Once redistribution was available in appropriate pre- and post-1984 marriages, there was no longer a rational reason to exclude pension interest only in the latter category.
The Court found that the distinction was no longer connected to a rational purpose and that the exclusion unfairly discriminated against women.
Section 7(7)(c) therefore violated the right to equality before the law and to equal protection and benefit of the law.
Kubayi asked the Court to suspend the invalidity order
Justice and Constitutional Development Minister Mmamoloko Kubayi accepted that section 7(7)(c) had become vulnerable to constitutional challenge after EB and KG.
She asked the Constitutional Court to suspend the declaration of invalidity for between 24 and 36 months. Kubayi said this would give Parliament time to address the provision as part of broader matrimonial property reform.
She proposed interim relief during the suspension and expressed concern that immediate invalidity could disrupt settlement negotiations or divorce proceedings that were already at an advanced stage.
The Court refused the request.
It found that section 7(7)(c) served only to exclude pension interest from the affected marriages and had no remaining constitutionally compliant purpose that needed to be preserved. The proposed legislative changes would remove the provision, producing the same substantive outcome as immediate invalidity.
The Minister also told the Court that pension funds already implemented orders under section 7(8) and that immediate invalidity would not place an undue administrative burden on them. The Court concluded that pension interest could be dealt with under the existing redistribution framework and found no reason to retain the exclusion while Parliament addressed the legislation.
Finalised divorces will not be reopened
The order does not affect the legal consequences of acts, omissions, or facts existing before 9 October 2026 in relation to marriages concluded on or after 1 November 1984.
The Court explained that the ruling would not retrospectively reopen finalised divorce proceedings or matrimonial estates that had already been wound up.
The interim order relating to the broader section 7(3) redistribution remedy remains in force while Parliament is given time to address the defects identified in EB and KG. The suspension expires on 10 April 2027.
That deadline does not apply to section 7(7)(c), which became invalid with immediate effect on 9 October 2026. Pension interest now falls within the interim redistribution regime established following EB and KG.
The result is a limited but significant change. A divorce court considering a qualifying redistribution claim no longer has to exclude pension interest merely because the marriage was concluded on or after 1 November 1984. Whether the court orders any transfer will depend on the evidence and what it considers just and equitable.
Disclaimer: This article provides general information about the judgment and does not constitute legal advice. The application of the ruling will depend on the circumstances of each divorce and redistribution claim.
Click here to download the judgment.
