For many couples in South Africa, an antenuptial contract excluding the accrual system appears to settle one crucial question: What happens to each spouse’s assets if the marriage terminates? A watershed Constitutional Court ruling, however, demonstrates why a total separation of assets is not clear-cut – especially where pension interest is concerned. Earlier this month, in GD v Minister of Home Affairs and Others, the ConCourt unanimously declared section 7(7)(c) of the Divorce Act unconstitutional for, inter alia, unfairly discriminating against persons on the grounds of gender. While the decision does not automatically entitle spouses to receive a share of each other’s pensions, it opens the door to the redistribution of pension interest during divorce proceedings involving marriages concluded out of community of property without accrual.
Section 7(7)(c) of the Divorce Act: Why does a wedding date affect pension interest?
Under section 7(7)(a) of the Divorce Act, a spouse’s pension interest is typically deemed to form part of their assets when determining financial entitlements on divorce, subject to defined statutory exceptions. One such exception is contained under section 7(7)(c) of the Act. Per this provision, a pension interest will not be included in a party’s assets – during a divorce action – in respect of a marriage out of community of property entered into on or after 1st November 1984 in terms of an antenuptial contract that expressly excludes the accrual system.
This statutory exemption has accordingly prevented pension interest from being treated as an asset for redistribution in those marriages, which has – unsurprisingly – created an unusual date-based divide. Indeed, spouses in comparable marriages concluded before the 1984 cut-off date could have their pension interest considered during divorce proceedings, while those who married later were historically excluded.
In an earlier ruling in EB (born S) v ER (born B); KG v Minister of Home Affairs, the ConCourt addressed a similar date-based restriction in section 7(3) of the Divorce Act, which permits a court to order a transfer of assets – on application of one spouse – in the absence of an agreement regulating asset division. Pursuant to finding the provision unconstitutional, the Court’s interim relief opened this remedy to qualifying spouses in post-1984 marriages. Until the present case, the pension-specific exclusion in section 7(7)(c) of the Act remained unchanged.
The facts of the case: The divorce in question
Mrs D married in April 2004 under an antenuptial contract excluding the accrual system. After their marriage broke down, she instituted divorce proceedings in October 2020 and sought, among other relief, redistribution of her husband’s pension interest.
In justifying this claim, she alleged that her work managing the family and supporting his business and personal endeavours materially helped build and maintain his respective estate. Her husband defended the divorce action and disputed her entitlement to redistribution. He did not, however, participate in the constitutional proceedings in either the court a quo or ConCourt.
Crucially, the ConCourt was not tasked with determining whether Mrs D should receive any pension interest. Instead, the core question was whether the law could prevent a divorce court from considering it.
Why the ConCourt found the exclusion unconstitutional
In evaluating the wider legal framework regulating the redistribution of assets in the divorce, the ConCourt found that section 7(7)(c) of the Divorce Act implicates two constitutional issues.
Irrational differentiation
In KG v Minister of Home Affairs, the ConCourt accepted that the distinction between pre- and post-1984 marriages served a rational purpose under the legislative framework previously in place, although it unfairly discriminated against women in practice. However, once KG extended the section 7(3) redistribution remedy to qualifying post-1984 marriages, the remaining exclusion of pension interest under section 7(7)(c) no longer serves a legitimate purpose. The Court accordingly described this exclusion as ‘vestigial’ and held that the distinction was irrational under section 9(1) of the Constitution, which guarantees everyone the ‘right to equal protection and benefit of the law’.
Unfair discrimination on the basis of gender
Confirming the disproportionate effect of the section 7(7)(c) exclusion on women in post-1984 marriages, the ConCourt held that the provision also contravenes section 9(3) of the Constitution, which prohibits unfair discrimination on the grounds of gender. Indeed, expert evidence presented to the Court demonstrates that women in heterosexual marriages often accumulate less retirement wealth and frequently carry the burden of unpaid domestic responsibilities, which allows their husbands greater opportunity to advance their careers and build pension savings. In this respect, excluding pension interest from consideration compounds an historical gender-skewed disadvantage.
As highlighted by the Court, financial contributions within a marriage don’t always take the form of earnings or savings. The judgment thus recognises the relevance of unpaid and indirect contributions. When deciding what redistribution is just and equitable, courts may accordingly take couples’ freedom to choose their marital arrangements, alongside disparities in bargaining power, into account. Indeed, the ConCourt rejected the idea that section 7(7)(c) could be defended as protecting an ‘illusory freedom of choice’. As a result, it found no rational justification for the exemption under a section 36 limitation analysis.
Does this mean a spouse is automatically entitled to a portion of the other’s pension at divorce?
Significantly, the ruling does not create automatic pension sharing or alter a couple’s matrimonial property regime. Instead, pension interest is no longer automatically excluded from the asset pool for purposes of section 7(3) of the Divorce Act.
When did the ruling take effect – and what about pending divorces?
According to the order, the declaration of invalidity took immediate effect on 9th October 2026. Section 7(7)(c) of the Act, it reasoned, serves no constitutionally compliant function beyond excluding marriages without accrual from the redistribution of pension interest at divorce. Accordingly, pension interest will now be dealt with as part of the assets subject to redistribution under the section 7(3) and (8) framework of the Divorce Act. Specifically, it falls within the scope of the interim remedy provided by the ConCourt in KG.
Importantly, the order expressly preserves the legal consequences of any act, omission, or fact existing before the ruling in relation to marriages concluded on or after 1st November 1984 and does not affect finalised divorce proceedings or wound-up matrimonial estates where pension interest may have been relevant.
For divorces still underway, the judgment doesn’t delineate a blanket rule resolving every procedural or financial situation and the immediate invalidity of the section 7(7)(c) exclusion may be relevant.
Future legislation: What happens next?
Notably, the ConCourt discussed the proposed General (Family) Laws Amendment Bill, which would remove section 7(7)(c) altogether and codify the KG interim relief concerning section 7(3) of the Act. Ultimately, the Court stressed that proposed legislation was no reason to delay relief as Parliament’s adoption of the aforementioned Bill was not guaranteed.
The bottom line for couples married out of community of property without accrual
If you married out of community of property without accrual on or after 1st November 1984, the marriage date alone no longer bars a divorce court from considering pension interest in a redistribution claim. Critically, the ruling does not extend an automatic right to a spouse to claim half the other’s pension, with the outcome of such proceedings dependent on a court’s application of the Divorce Act, available evidence, and what it deems just and equitable.
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