Divorce is not only about dividing physical assets; it can also determine whether a spouse has access to long-term financial security. A recent High Court ruling could change the way pension interests are treated in certain divorce matters, particularly for spouses who may previously have been excluded from sharing in these assets.

In G.D v Minister of Home Affairs and Others (2252/2024) [2025] ZAECQBHC 1, the High Court of South Africa, Eastern Cape Division (Gqeberha), declared section 7(7)(c) of the Divorce Act 70 of 1979 (“the Divorce Act”) unconstitutional and invalid to the extent that it excludes pension fund interests from redistribution in marriages out of community of property without accrual concluded on or after 1 November 1984. The Court found this exclusion to be irrational and to result in indirect gender discrimination, particularly disadvantaging economically weaker spouses.

However, the declaration of invalidity has no legal force unless and until the Constitutional Court confirms it in terms of section 172(2)(a) of the Constitution. Should the order be confirmed, as is widely anticipated, the consequences will be significant: pension interests will form part of the redistribution asset pool in all qualifying divorce actions, and the enforcement mechanism under section 7(8) of the Divorce Act will become operative for marriages out of community of property without accrual concluded after 1984.

The legal framework
The Divorce Act regulates the treatment of pension interests in divorce proceedings. Section 7(7)(a) provides that a spouse’s pension interest is deemed to be part of their assets for the purpose of determining patrimonial benefits upon divorce. Section 7(7)(b) qualifies this by requiring that any pension interest be reduced by amounts already paid out or awarded in a previous divorce.

Section 7(7)(c), however, creates a categorical exclusion. It states that the deeming provision in section 7(7)(a) does not apply to marriages out of community of property entered into on or after 1 November 1984 under an antenuptial contract (“ANC”) that excludes community of property, community of profit and loss, and the accrual system. As a result, pension interests, often among the most valuable assets in a marriage, are entirely excluded from consideration in redistribution claims for this category of marriages.

Section 7(8) provides the enforcement mechanism, empowering courts to order pension funds to pay the non-member spouse’s allocated share directly and to endorse their records accordingly. This mechanism operates only where a pension interest is deemed an asset under section 7(7). Consequently, the exclusion in section 7(7)(c) not only prevents pension interests from forming part of the asset pool but also renders section 7(8) inoperative in these cases, leaving non-member spouses without recourse against pension funds.

G.D v Minister of Home Affairs and Others
Mrs D and Mr D were married on 25 April 2004 out of community of property under an ANC excluding the accrual system. During the marriage, Mrs D contributed substantially to the household and to Mr D’s business interests. She instituted divorce proceedings on 13 October 2020 and estimated Mr D’s retirement annuities at approximately R1.5 million.

By operation of section 7(7)(c), these interests were excluded from the determination of patrimonial benefits. Mrs D accordingly sought a declaration of constitutional invalidity and requested that the order operate prospectively only. The application was not opposed by the respondents, including the Minister of Home Affairs and the Minister of Justice and Constitutional Development.

The Court found section 7(7)(c) to be constitutionally defective on several grounds:

• Irrationality: In the post-KG v Minister of Home Affairs and Others 2024 (2) SA 1 (CC)   framework, the provision unjustifiably excludes pension interests from redistribution despite the existence of broader redistribution remedies, resulting in incoherent and layered differentiation.
• Unfair discrimination: The exclusion constitutes indirect discrimination based on sex and gender, disproportionately affecting women. 
• International obligations: The finding was reinforced by South Africa’s obligations under international law to promote gender equality.
• Contractual autonomy: The Court rejected the argument that the voluntary exclusion of accrual in an ANC justifies the provision, emphasising that contractual autonomy cannot legitimise systemic inequality. However, such agreements remain relevant in assessing what redistribution is equitable.

Current legal position: pending Constitutional Court confirmation
The order of invalidity in the G.D. case has been referred to the Constitutional Court for confirmation and was recently argued. Nonetheless, legal certainty requires, under section 172(2)(a) of the Constitution, that a High Court declaration of invalidity has no force until confirmed by the Constitutional Court.

Accordingly, section 7(7)(c) remains fully operative. Divorce courts are bound to apply it, and pension interest claims in post-1984 marriages out of community of property without accrual remain unavailable until confirmation is granted.

Implications if the Order is confirmed

If the Constitutional Court confirms the order, it may exercise a range of remedial powers under section 172(1)(b) of the Constitution, including:

• Confirming the declaration outright,
• Suspending the declaration of invalidity,
• Reading in corrective wording, or
• Declining confirmation (less likely).

If confirmed, section 7(7)(c) would be declared invalid and would cease to have legal force to the extent of the Constitutional Court’s order.  Section 7(7)(a) would then operate in accordance with its terms, with the result that a spouse’s pension interest is deemed part of the patrimonial consequences of divorce to the extent provided for by the Divorce Act.

Practically, this would activate section 7(8) for marriages out of community of property without accrual, enabling courts to order pension funds to pay non-member spouses directly. Read together with the KG-case, this would create a coherent redistribution regime in which all relevant assets - including pension interests - may be considered.

• Access to pension interests will remain subject to the contribution requirement in section 7(4).
• Courts will retain discretion under section 7(5), including consideration of the parties’ ANC.
• The order is unlikely to operate retrospectively, meaning completed divorces will remain unaffected.
• It will likely apply to pending proceedings, allowing claims to be advanced where matters are not yet finalised.
• Whether the order takes immediate effect or is subject to suspension will depend on the Constitutional Court.
• The decision may also prompt legislative reform to consolidate and rationalise the evolving redistribution framework.

The constitutional challenge to section 7(7)(c) represents a pivotal development in South African divorce law. It addresses a longstanding inconsistency in the legal framework that has excluded pension interests from redistribution, often to the detriment of economically vulnerable spouses.

If confirmed, the G.D. case will mark a significant step towards a more coherent, equitable, and constitutionally aligned system and pension interests will no longer be automatically excluded from consideration. Crucially, this development does not undermine judicial discretion or the relevance of antenuptial agreements. Rather, it situates them within a framework grounded in substantive equality, ensuring a fairer and more balanced approach to the division of assets upon divorce.


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