On 9 October 2026 a unanimous Constitutional Court, per Dambuza J, confirmed that section 7(7)(c) of the Divorce Act 70 of 1979 is unconstitutional and invalid, with immediate but prospective effect. A spouse married on or after 1 November 1984 out of community of property and without accrual may now ask the divorce court to include the other spouse’s pension interest in a redistribution order under section 7(3).
The judgment does not make pension interest automatically divisible. It removes the last statutory bar that kept pension interest out of the pool of assets a court may consider.
Background: the statutory scheme and EB/KG
Section 7(7)(a) deems a party’s pension interest to be part of his or her assets when the patrimonial benefits on divorce are determined. Section 7(7)(c) switched that deeming provision off for marriages concluded on or after 1 November 1984 by antenuptial contract excluding community of property, community of profit and loss and the accrual system (para 33).
The exclusion made sense under the original scheme. Section 7(3) redistribution was available only to pre-1984 marriages, to compensate spouses who had no access to the accrual system introduced by the Matrimonial Property Act 88 of 1984 (para 34, fn 19). Post-1984 spouses were expected to choose accrual.
In EB (born S) v ER (born B); KG v Minister of Home Affairs [2023] ZACC 32; 2024 (2) SA 1 (CC), the Court held that confining section 7(3) to pre-1984 marriages unfairly discriminated against women. It suspended the declaration of invalidity and, as interim relief, read section 7(3)(a) without the words limiting it to marriages before the commencement of the Matrimonial Property Act. Section 7(7)(c) was not challenged in KG, so post-1984 spouses could claim redistribution of every asset except pension interest (paras 34 and 36).
The KG suspension was later extended by 18 months and now expires on 10 April 2027. The interim reading-in remains in force (paras 30 to 31).
The facts and the High Court
Mr and Mrs D married on 25 April 2004, out of community of property and without accrual. Mrs D says her main focus was the family and supporting Mr D’s business, which materially contributed to the growth of his estate. She issued divorce summons on 13 October 2020 and claimed redistribution in reliance on KG, including Mr D’s pension interest (paras 3 to 4). Section 7(7)(c) stood in the way, so she challenged it in parallel proceedings (para 15).
Her evidence included expert reports by Prof Elsje Bonthuys and a forensic actuary, Mr W H Boshoff. On average, women retire with about 71% of the wealth men accumulate and receive about 74% of men’s retirement income (para 16).
None of the respondents opposed. The Eastern Cape Division, Gqeberha held that the provision differentiated arbitrarily (s 9(1)) and indirectly discriminated against women on the grounds of gender and sex (s 9(3)), without justification under s 36. It struck down the whole of section 7(7)(c), refused to suspend the order and made it non-retrospective: GD v Minister of Home Affairs [2025] ZAECGQBHC 1 (paras 8 to 10).
The Constitutional Court’s reasoning
Irrational differentiation (s 9(1)). In KG the pre/post-1984 split in section 7(3) was held rational, because it was tied to the accrual scheme. That broader scheme no longer exists after KG. Every marriage out of community without accrual can now attract redistribution, so excluding only pension interest from post-1984 marriages serves no legitimate purpose. The Court called the exclusion “vestigial” (paras 35 to 36).
Unfair discrimination (s 9(3)). The KG reasoning applies equally. The expert evidence showed that the wealth gap between men and women extends to pension interest. Women are less likely to have pensions, or have smaller ones. They also carry more of the unpaid domestic labour and household expenses, which frees husbands to build careers and pension savings. The exclusion therefore falls disproportionately on women (paras 37 to 38).
No justification (s 36). The respondents did not attempt a justification. The Court added that party autonomy cannot save the provision. No spouse could realistically have chosen a matrimonial regime because of section 7(7)(c) alone, and the “illusory freedom of choice” argument had already been rejected in KG. The discretion in section 7(4) and (5) lets the divorce court weigh contributions, choice and bargaining power anyway. An irrational distinction cannot be justified under s 36 by definition (para 38).
The Minister of Justice abided and filed an explanatory affidavit more than a year late. The Court criticised the delay as negligent and unreasonable, but granted condonation because her input was needed (paras 27 to 29).
Remedy
The Minister of Justice asked for the order to be suspended for 24 to 36 months, with interim relief, so that Parliament could deal with the defect through the General (Family) Laws Amendment Bill (B 20 of 2025). The Court refused, for three reasons (paras 39 to 46):
1. Section 7(7)(c) does nothing except exclude post-1984 marriages. Unlike section 7(3) in KG, there is nothing left to preserve by reading-in.
2. The Bill itself would delete section 7(7)(c). Suspending the order beyond the KG timetable to wait for a legislative result identical to the immediate remedy would be neither just nor equitable.
3. Following Mazibuko v Sisulu, the possibility of reform legislation is no reason to delay relief.
With section 7(7)(c) gone, pension interest is simply treated as part of the assets subject to redistribution under section 7(3) and (8). It falls within the KG interim regime.
The order (para 48):
1. The High Court’s declaration of invalidity is confirmed.
2. Section 7(7)(c) is invalid to the extent that it differentiates irrationally on the ground of gender (s 9(1)) and unfairly discriminates on the ground of gender between women in pre- and post-1984 marriages out of community and without accrual (s 9(3)).
3. The order does not affect the legal consequences of any act, omission or fact existing before it was made in relation to post-1984 marriages.
4. The Minister of Home Affairs pays the applicant’s costs.
Practical implications
• Scope. The judgment affects only post-1984 marriages out of community without accrual. In accrual marriages, section 7(7)(a) already brought pension interest into the accrual calculation.
• No automatic share. Pension interest joins the asset pool, but the claimant must still prove under section 7(4) to (6) that a transfer is just. This includes direct or indirect contributions to the maintenance or increase of the other spouse’s estate (paras 21 and 38).
• Payment mechanics are unchanged. As the Minister of Justice noted, funds already implement orders under section 7(8) read with section 37D(1)(d) of the Pension Funds Act 24 of 1956. No new administrative burden arises (para 21).
• Finalised matters stand. Concluded divorces and wound-up estates are not reopened (paras 39 and 46; order para 3).
• Pending actions. It is worth reviewing redistribution claims in pending divorces and amending them to include the defendant’s pension interest and the section 7(8) relief. Mrs D’s own pending action is the model case. However, order para 3 preserves the legal consequences of facts existing before 9 October 2026. Where a settlement agreement was signed but not yet made an order of court, its effect should be considered carefully.
• Legislation. The KG suspension expires on 10 April 2027. If B 20 of 2025 is enacted, it would make the section 7(3) reading-in permanent and repeal section 7(7)(c) (para 44).
Sources
• GD v Minister of Home Affairs and Others (CCT 60/25) [2026] ZACC 39 (SAFLII)
• Media summary (SAFLII)
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