In short: on 9 October 2026 the Constitutional Court struck down section 7(7)(c) of the Divorce Act in GD v Minister of Home Affairs and Others (opens in a new tab) [2026] ZACC 39. If you were married out of community of property without accrual on or after 1 November 1984, a divorce court can now take your spouse's pension interest into account when it redistributes assets. The order took effect immediately but does not reopen divorces that were already finalised.
What the Constitutional Court decided
Section 7(7)(a) of the Divorce Act 70 of 1979 treats a spouse's pension interest as part of their assets on divorce. Section 7(7)(c) then switched that rule off for one group: marriages out of community of property, without accrual, concluded on or after 1 November 1984.
A unanimous Court, in a judgment by Justice Dambuza, confirmed the Eastern Cape High Court's finding that this exclusion is unconstitutional. It held that section 7(7)(c): • differentiates irrationally on the ground of gender, against section 9(1) of the Constitution; and • unfairly discriminates on the ground of gender, against section 9(3), by treating women in pre- and post-1984 marriages without accrual differently.
The Court refused to suspend the order. It applies from 9 October 2026, with no interim period for Parliament to fix the section first.
The case builds on EB v ER; KG v Minister of Home Affairs (opens in a new tab) [2023] ZACC 32. There the Court held that limiting redistribution claims under section 7(3) to marriages concluded before 1 November 1984 unfairly discriminated against women. Spouses in later marriages without accrual can already claim redistribution under that judgment's interim relief. GD closes the gap: pension interest now forms part of what can be redistributed.
Who this affects
The judgment matters to you if all of these apply: • you married on or after 1 November 1984; • you signed an antenuptial contract that excludes community of property and the accrual system ("out of community without accrual"); • you or your spouse belongs to a pension fund, provident fund, preservation fund or retirement annuity; and • your divorce had not been finalised by 9 October 2026.
It does not change the position for marriages in community of property or out of community with accrual. In those marriages pension interest was already counted as an asset on divorce.
What "pension interest" means
Pension interest is not the full value of a retirement fund. Section 1 of the Divorce Act defines it (Acts Online (opens in a new tab)): • Pension or provident fund member: the benefit the member would have received under the fund rules if they had resigned on the date of the divorce. • Retirement annuity member: the member's total contributions up to the date of divorce, plus simple interest at the prescribed rate.
So the figure is fixed at the divorce date, and it is usually smaller than the fund value a member sees on their statement.
How a court decides a redistribution claim
The pension is not split automatically. Pension interest now sits in the pool of assets a court may consider under section 7(3) of the Divorce Act, and the court decides what is just and equitable.
Under sections 7(4) and 7(5) the court looks at, among other things: • each spouse's direct and indirect contributions to the other's estate, including unpaid work raising children and running the home; • the existing means and obligations of each spouse; • any donation between the spouses; and • any other factor the court thinks should be considered.
If the court awards part of a member's pension interest to the other spouse, section 7(8) lets it order the fund to pay that portion directly. Pension funds already process these orders, so no new procedure is needed.
Finalised divorces, pending divorces and settlement agreements
• Finalised divorces: not affected. The Court said the order has no retrospective effect and does not disturb finalised divorces or wound-up matrimonial estates. • Pending divorces: the order took effect on 9 October 2026, so pension interest may be raised in a redistribution claim in a divorce still under way. The order also preserves the legal consequences of acts and facts before that date, so how it plays out in a particular pending case can depend on the facts. • Settlement agreements: once signed and made an order of court, a settlement agreement usually settles the redistribution question. If you have not yet signed, check whether the agreement deals with both spouses' pension interests.
What happens next
• 10 April 2027: the extended deadline for Parliament to fix section 7(3) after EB v ER; KG. Until then, the Court's interim relief applies, letting spouses in post-1984 marriages without accrual claim redistribution. • General (Family) Laws Amendment Bill (B 20 of 2025): a draft Bill that would remove section 7(7)(c) and make the KG relief permanent. It has not been passed, and the Court noted there is no guarantee it will be. • Until Parliament acts: section 7(7)(c) is already invalid, so the GD order applies now without waiting for the Bill.
Frequently asked questions
Can my spouse claim my pension if we are married out of community of property without accrual? Yes, since 9 October 2026, if you married on or after 1 November 1984 and your divorce was not yet finalised. Your pension interest can be included in a redistribution claim under section 7(3). The court decides what share, if any, is fair.
Is my pension automatically split 50/50 on divorce? No. In a marriage without accrual there is no automatic split. A court weighs each spouse's contributions and circumstances before ordering any transfer.
Does this apply to retirement annuities and provident funds? Yes. The Divorce Act's definition of pension interest covers pension and provident fund members and retirement annuity members.
I divorced before 9 October 2026. Can I reopen my divorce? No. The order is not retrospective and does not affect finalised divorces.
What is section 7(7)(c) of the Divorce Act? It was the provision that excluded pension interest from the assets in post-1984 marriages without accrual. The Constitutional Court declared it invalid in GD v Minister of Home Affairs [2026] ZACC 39.
What is the difference between this case and KG v Minister of Home Affairs? KG (2023) opened redistribution claims under section 7(3) to post-1984 marriages without accrual. GD (2026) adds pension interest to the assets that can be redistributed in those marriages.
Sources
• GD v Minister of Home Affairs and Others (opens in a new tab) (CCT 60/25) [2026] ZACC 39, 9 October 2026, SAFLII • EB v ER; KG v Minister of Home Affairs (opens in a new tab) [2023] ZACC 32, 10 October 2023, SAFLII • Divorce Act 70 of 1979, section 1 definitions (opens in a new tab), Acts Online • Pension interest now redistributable in all marriages without accrual (opens in a new tab), Family Laws South Africa • The GD judgment, part one (opens in a new tab), Hammond Pole Attorneys
This article is general information as at 25 October 2026, not legal advice. Lawvero provides document preparation services and does not provide legal advice.