Lize de la Harpe, Senior Legal Advisor: Sanlam Life & Savings: Regulatory Unit

Introduction

The Constitutional Court on 9 October 2026 delivered a landmark judgment paving the way for pension interest to be included in redistributions orders, regardless of when the marriage was concluded.

Due to the technical nature of this judgment, the risk of it being misinterpreted is high. For that reason, I want to start off with explaining the applicable law before we delve into the details of the case.

First things first – the applicable law

The Matrimonial Property Act, 1984 governs the matrimonial property regimes in South Africa. In essence the act distinguishes between three different marital property regimes, namely:

1. in community of property,
2. out of community of property with accrual, and
3. out of community of property without accrual.

The case discussed below relates to (c), i.e.: a marriage out of community of property without accrual. Parties who are married out of community of property without accrual keep their assets separately – as such, no one shares anything at divorce.

The Divorce Act, 1979 governs the dissolution of marriages. Section 7(1) empowers a court to make a settlement agreement entered into between the parties an order of court. Section 7(2) in turn relates to those matters where the parties did not reach an agreement and empowers the court to make an order which the court finds just in respect of the division of the assets and/or the payment of maintenance.

Redistribution orders

As mentioned above, when married out of community of property without accrual, each party keeps their assets separately and no one shares anything at divorce. The Divorce Act, however, contains an exception to this rule.

Section 7(3) of the Divorce Act is a special remedy in terms whereof a court granting a decree of divorce in respect of a marriage out of community of property without accrual entered into before the commencement of the Matrimonial Property Act, 1984 (i.e.: before 1 November 1984) may on application by one of the spouses order that certain assets of the other party as the court may deem just be transferred to the first-mentioned spouse.

It is very important to remember this section has been in the act for years – it is not new. More importantly, an order for redistribution will only be granted if the court is satisfied that it is equitable and just by reason of the fact that the party in whose favour the order is granted contributed directly or indirectly to the maintenance or increase of the estate of the other party during the marriage. Section 7(5) goes on to list other factors the court will take into account as well.

Until recently a redistribution order was only possible to those married out of community of property without accrual who got married before the commencement of the Matrimonial Property Act, i.e.: before 1 November 1984. This limitation was specifically challenged in the Constitutional Court (CC) in the matter of EB v ER and KG v Minister of Home Affairs 2024 (2) SA 1 (CC) (referred to hereafter as “the KG judgment”) where the CC found that the exclusion of post-1984 marriages in section 7(3) unfairly discriminates against women in post-1984 marriages which cannot be justified under section 36(1) of the Constitution.

The CC accordingly declared section 7(3) inconsistent with the Constitution and invalid, which declaration was suspended for a period of 24 months to enable Parliament to make the necessary legislative amendments. The CC directed that, in the interim, subsection 7(3) must be read as excluding the words “before the commencement of the Matrimonial Property Act, 1984”.[1]

Claiming “pension interest” at divorce

Ordinarily, the money saved up in a retirement fund by either spouse is not an asset that is readily available to be shared when the parties divorce. To address this, the legislature specifically created a legislative framework that makes it possible for the non-member spouse to be able to claim a portion of the member spouse’s “pension interest” as at the date of the divorce.

Sections 7(7) and 7(8) of the Divorce Act make provision for an order against the member spouse’s pension interest in a divorce action:

1. Section 7(7) is a so-called “deeming provision” in the sense that it provides for pension interest as defined to be deemed to be a part of the assets at divorce which can then be shared at divorce.
2. Section 7(8) in turn enables a court to order that a portion of the pension interest of a member of a fund be awarded to the non-member spouse.

Section 7(7) however contains a very important limitation to this deeming mechanism that is often overlooked – section 7(7)(c) specifically states that this deeming provision will not apply to a marriage out of community of property without accrual concluded after 1 November 1984.

Put differently: if you got married out of community of property and without accrual after 1 November 1984 you cannot invoke section 7(7) to deem your spouse’s pension interest to be part of the assets to be split at divorce.

The Constitutional Court judgment delivered on 9 October 2026 discussed below has now changed that.

GD v Minister of Home Affairs and Others (CCT 60/25) [2026] ZACC 39 (9 October 2026)

Mr and Mrs D got married on 25 April 2004, which marriage was out of community of property without accrual.  Although Mrs D attended to her own business projects during their marriage, her main focus was managing the family and supporting Mr D in his business endeavours.  The marriage irretrievably broke down, leading to Mrs D instituting divorce proceedings in October 2020.

Relying on the fact that her efforts during their marriage allowed Mr D to accumulate a considerable estate, including pension interest that had far more value than her estate, Mrs D sought a redistribution order in her favour. In light of the KG judgement mentioned above, it was possible for her to do so as there is no longer any distinction in section 7(3) between those married pre and post-1984.

However, as currently worded, section 7(7)(c) of the Divorce Act still contains such a distinction by specifically excluding pension interest from a divorce action in respect of a marriage out of community of property without accrual entered into on or after 1 November 1984. As such, if the redistribution order were to be granted, it would exclude Mr D’s pension interest as they got married in 2004 – despite the fact that section 7(3) itself (which is where the redistribution remedy is set out) no longer distinguishes between pre and post-1984 marriages out of community of property without accrual.

Mrs D therefore argued that section 7(7)(c) is unconstitutional on the following grounds:

• Post the KG judgment, where it was decided that the distinction between pre- and post-1984 marriages in relation to redistribution orders in section 7(3) is unconstitutional, there is in general no longer any distinction between pre and post-1984 marriages.  However, in terms of section 7(7)(c) the distinction still exists with regard to pension interest
• Secondly, the exclusion of pension interest from redistribution discriminates on the basis of gender and sex, and is therefore contrary the Constitution for the same reasons that the CC invalidated section 7(3) in the KG judgment.

In February 2026 the Gqeberha High Court found in her favour and declared section 7(7)(c) of the Divorce Act as unconstitutional and invalid. She consequently brought an application to the CC for confirmation of the High Court’s ruling.

Turning to the law, the CC confirmed that the Divorce Act explicitly makes provision for the redistribution of assets in appropriate circumstances. Relying on the KG judgment, the CC held that withholding pension interest redistribution from one class of spouses, and particularly women in post-1984 marriages, is not fair discrimination. Post the KG judgment marital assets are subject to redistribution regardless of when the marriage in question was concluded.  As such, there is no longer a legitimate purpose for differentiating between pre- and post-1984 marriages in relation to the redistribution of pension interest.

The CC concluded that the High Court was correct in determining that section 7(7)(c) of the Divorce Act is inconsistent with the Constitution and declared the impugned section invalid with immediate effect.

Conclusion

It is extremely important to be clear about the legal principles underpinning this judgment:

• As mentioned at the outset, redistribution as a remedy for those married out of community of property without accrual has always been in the Divorce Act – this judgment does not introduce it as a new concept, nor does it automatically grant a spouse to such marriage half of their partners pension interest at divorce.
• Instead, the effect of this judgment is that going forward all eligible spouses in those marriages (out community of property without accrual) can apply for a redistribution of pension interest during divorce proceedings.
• This judgment does not have retrospective effect and will therefore not affect finalised divorces.
• Lastly, this judgment does not introduce any new administrative burden on retirement funds, as they already implement redistribution orders pursuant to section 7(8) of the Divorce Act.

The constitutional validity of any law is a matter of objective assessment and a spouse’s choice of a matrimonial property regime cannot confer validity on a law that otherwise lacks a legitimate purpose. The fact that the spouses chose a particular property regime is simply one of many factors a court would take into account when asked to make a redistribution order.

Men and women are often not on equal footing when marriages end, with women typically being financially worse off. The exclusion of pension interest from redistribution at divorce disproportionately impacts women, as husbands are more likely to have pensions, or to have more value in their pensions, than wives.

When the law binds couples to the terms of their marriage contracts without offering courts the discretion to make adjustments when it is just and equitable to do so, it is typically women who are unfairly disadvantaged.

The purpose of a redistribution order in terms of section 7(3) is to counteract the inequity and injustice inflicted on spouses who contribute to the maintenance or increase of their partner’s estate during marriage but have no recourse upon divorce. A spouse in a “new” marriage out of community of property without accrual can suffer exactly the same inequity and injustice when the marriage is dissolved – how then could it be a fair form of discrimination to withhold, from one class of spouses and in particular women in that class, a fair judicial remedy of which they may have as much need as other spouses? It is not fair; and this judgment has now corrected that.

[1] On 19 September 2025, the Minister of Justice applied to the Constitutional Court for a 12-month extension of the 24-month suspension order granted in the KG judgment, which was due to expire on 10 October 2025. The Minister of Justice submitted that, although a draft General (Family) Laws Amendment Bill addressing the constitutional defects identified in KG was in progress, Parliament would not be able to pass the impending legislation before 10 October 2025.  The CC extended the period of suspension by 18 months to accommodate any further delays that might occur. The suspension period will expire on 10 April 2027.

ENDS