In our previous article, Dividing more than assets, we discussed an important High Court ruling that could change how pension interests are treated when couples divorce. The Constitutional Court (CC) has now confirmed that decision, bringing a significant change to South African divorce law.
The CC confirmed the declaration of invalidity and held that section 7(7)(c) can no longer withstand constitutional scrutiny. The CC found that, following its earlier judgment in EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others (CCT 364/21; CCT 158/22) [2023] ZACC 32; 2024 (1) BCLR 16 (CC); 2024 (2) SA 1 (CC) (10 October 2023) (“KG case”), there was no rational basis for permitting redistribution orders in post-1984 marriages out of community of property without accrual while simultaneously excluding one of the most significant components of a spouse's estate, namely pension interests.
In effect, the CC agreed that section 7(7)(c) had become an anomaly within the broader divorce law framework. Once redistribution relief became available to spouses in post-1984 antenuptial contract marriages through the KG case, the continued exclusion of pension interests served no legitimate purpose and produced arbitrary outcomes.
Importantly, this does not mean that every person automatically qualifies for a share of their spouse's pension. However, it does mean that a pension interest can no longer be excluded simply because of the type of marriage contract the couple entered into.
The equality dimension
A significant aspect of the Constitutional Court's judgment was its endorsement of the equality concerns the High Court identified.
The Constitutional Court recognised the social and economic realities that often characterise marriages and divorces in South Africa. Financially advantaged spouses disproportionately accumulate pension wealth, while economically vulnerable spouses frequently contribute through unpaid caregiving, domestic labour, and support of family enterprises. Excluding pension interests from redistribution therefore had a disparate impact on women, who statistically remain more likely to bear these responsibilities.
The Constitutional Court accordingly held that the provision amounted to unfair discrimination on the grounds of sex and gender. In doing so, it reinforced the principle that matrimonial property regimes must operate consistently with substantive equality rather than merely formal contractual arrangements.
This aspect of the judgment is particularly important because it confirms that constitutional scrutiny extends beyond the wording of a statutory provision to its practical consequences. The real-world impact of section 7(7)(c), rather than its form alone, ultimately rendered it unconstitutional.
The end of era the pension interest exclusion
The practical consequence of the judgment is straightforward. Section 7(7)(c) has fallen away. Pension interests are no longer excluded from redistribution considerations merely because the parties married out of community of property without accrual on or after 1 November 1984.
As anticipated in our previous article, the result is that section 7(7)(a) now applies uniformly. Pension interests may therefore form part of the patrimonial assets a court considers when determining whether a redistribution order is just and equitable.
Equally important is the revival of the enforcement mechanism contained in section 7(8) of the Divorce Act. For the first time, spouses pursuing redistribution claims in this category of marriages may obtain direct orders against pension funds, allowing the allocated share to be paid directly by the fund to the non-member spouse.
This is one of the judgment's most significant practical consequences. Recognition of a pension interest as an asset is of limited value without an effective enforcement mechanism. The Constitutional Court's decision now aligns both provisions and creates a coherent system for the treatment of pension interests.
What has not changed
The judgment should not be understood as creating an automatic entitlement to a share of a spouse's pension interest. The requirements for redistribution remain intact.
A claimant must still satisfy the contribution requirement under section 7(4) of the Divorce Act, and courts retain the broad discretion conferred by section 7(5) when determining whether a redistribution order should be granted and, if so, in what amount.
Likewise, antenuptial contracts remain relevant. The Constitutional Court confirmed, in substance, that the parties' contractual arrangements remain a factor to be considered when assessing what is equitable in a particular case. The judgment does not abolish contractual autonomy; it merely prevents contractual arrangements from operating within a statutory framework that produces unconstitutional outcomes.
Finality and prospective application
Another prediction made in our earlier article has largely been confirmed. The Constitutional Court directed that the declaration of invalidity will not disturb completed divorces or matrimonial estates already finalised. This preserves legal certainty and avoids reopening matters long since concluded.
Pending divorce proceedings, however, stand on a different footing. Parties whose matters have not yet been finalised may now seek relief, including pension interests, as part of the potential redistribution pool.
For legal practitioners, this means that existing litigation involving post-1984 marriages out of community of property without accrual should be re-assessed to determine whether pension-based claims can now be advanced.
A more coherent redistribution framework
When read alongside the KG case, the Constitutional Court's decision in the GD case completes an important constitutional development in South African matrimonial law.
Before the KG case, redistribution relief was unavailable to many spouses married out of community of property without accrual after 1984. Following the KG case, redistribution became available. Following the GD case, pension interests can now also be considered within that redistribution enquiry.
The result is a substantially more coherent framework. Courts are now empowered to consider all relevant assets when determining whether a redistribution order is equitable, rather than being required to ignore what is often the most valuable asset accumulated during the marriage.
The Constitutional Court's judgment in GD v Minister of Home Affairs and Others [2026] ZACC 39 confirms the concerns identified by the High Court and validates the expectation that section 7(7)(c) could not survive constitutional scrutiny. The exclusion of pension interests from redistribution in post-1984 marriages out of community of property without accrual has now been definitively removed.
The decision represents an important advance in the pursuit of substantive equality and financial fairness at divorce. Pension interests are no longer insulated from redistribution solely because of the matrimonial property regime the parties chose. Instead, they now form part of the broader equitable inquiry that lies at the heart of the redistribution remedy.
Viewed together, the KG and GD cases establish a significantly more coherent constitutional framework for redistribution claims, one that better reflects both the realities of modern marriages and the constitutional commitment to equality and fairness.
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