DIVORCE & MATRIMONIAL PROPERTY
The Constitutional Court on section 7(7)(c) of the Divorce Act, and what it means if your marriage is ending
Mrs D married in April 2004. On her account she was the one doing all the running in the marriage, looking after the home and supporting her husband in his business and personal endeavours as well as running her own business projects. By the time her case got to the High Court there were three children. She commenced divorce proceedings in October 2020 and sought a redistribution of part of her husband’s pension interest to her, with section 7(7)(c) of the Divorce Act being the obstacle in her way. That provision was declared invalid by the Constitutional Court on 9 October 2026.
To see why it mattered we need to go back to 2023. The couple married out of community of property and without accrual which means each spouse keeps what is theirs. Section 7(3) of the Divorce Act is the exception to that because it allows the divorce court to transfer assets from one spouse to the other if it thinks it is just, but until recently that only applied to marriages prior to 1 November 1984 (when the accrual system came into being). In EB v ER; KG v Minister of Home Affairs [2023] ZACC 32, the Constitutional Court held that to exclude marriages entered into after that date was to unfairly discriminate against women and by an interim reading in it extended the remedy to all marriages out of community of property without accrual.
What the case left behind was section 7(7). Para (a) treats a spouse’s pension interest as part of his or her assets in the calculation of what the parties are entitled to. Para (c) effectively switched that off for the same cohort of post 1984 marriages. So, in the case of Mrs D, a wife in her position could go to court and ask for a redistribution of the assets, but the retirement savings (which form such a large part of the average person’s assets) would be excluded from that pot.
In GD v Minister of Home Affairs and Others [2026] ZACC 39, Dambuza J, in a unanimous judgment, affirmed the declaration of invalidity rendered by the Gqeberha High Court. Significantly, no one made any argument in relation to the provision. The Minister of Home Affairs did not participate; Mr D made no submissions and the Minister of Justice accepted that the provision was now in a vulnerable position.
The Court’s reasoning was pretty brief. Having eliminated the old divide between pre and post 1984 marriages, the pension exclusion was just a relic. It was a vestigial provision with no rational purpose and the Court found it to be gender discriminatory. The expert evidence before the Court showed that women are expected to retire with 71% of the wealth of men and 74% of their retirement income. The Court accepted that the wealth gap applies equally to pensions. It was also noted that the bulk of the unpaid domestic work falls on the wife, while her husband is free to go out and build a career and pension savings and therefore, a divorce court is entitled to take that into account.
The Justice Minister asked the Court to stay the declaration for 24 to 36 months so that Parliament could deal with the issue and the Court refused. In KG the offending language was part of a section that otherwise was perfectly functional, which is why an interim stay was appropriate. Section 7(7)(c) on the other hand did absolutely nothing other than exclude, so there was no point in keeping it in place while Parliament considered the matter.
The order came into effect immediately on 9 October 2026 and is only prospective and does not affect finalised divorces or wound-up estates.
It’s important to be clear about what has and what hasn’t changed. A spouse’s pension is not automatically split. It now becomes part of the pool of assets that a court could consider under s7(3) and s7(8) and the court will still have its discretion under s7(4) and s7(5) to determine what is just and equitable (which will be largely determined by what the claimant contributed). The antenuptial contract has not been cancelled because the Court did say that a court may take into account the couple’s freedom to choose their arrangement in the light of the disparities in bargaining power that often exist. The Constitutional Court did not decide on Mrs D’s own claim for redistribution as she didn’t make that claim to it. That is for the divorce court.
For anyone in a divorce out of community of property without accrual, the practicalities are pretty straightforward. Top up the pension at the outset. Get evidence of your contribution as that is what the court will look at. If you’re the one with the pension don’t assume that the contract will protect it and be very careful with settlements as section 7(3) only applies where there is no agreement between the spouses as to how their assets are to be divided. What you sign may well be the end of the matter.
Parliament is still working on a permanent legislative fix. The General (Family) Laws Amendment Bill (B 20 of 2025) which would formally remove s7(7)(c) and regulate the KG relief is still a draft. Until that becomes law the Constitutional Court order is the one that applies.
Written by Mr Lehlogonolo Mokgathi, Candidate Legal Practitioner, Pretoria and reviewed by Ms M Maganbhai-Mooloo, Attorney, Pretoria.
Sources:
GD v Minister of Home Affairs and Others [2026] ZACC 39 (CCT 60/25), 9 October 2026.