Written by Roy Bregman, admitted attorney with over 51 years'
experience in family law and divorce.
Last updated: 18 October 2026
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KEY TAKEAWAYS ·
On 9
October 2026 the Constitutional Court struck down section 7(7)(c) of the
Divorce Act, the rule that kept pensions out of redistribution claims in
marriages without accrual concluded on or after 1 November 1984. ·
A
divorce court may now take your spouse's pension, provident fund or
retirement annuity into account when deciding whether to transfer assets to
you. ·
Nothing
is automatic. The spouse asking for a share must prove that a transfer is
fair, based on what they contributed during the marriage. ·
Divorces
already finalised are not reopened. If your divorce is still pending, take
advice now on amending your claim. |
If you married out of community of property
without accrual on or after 1 November 1984, your spouse's pension may now be
taken into account if you divorce. On 9 October 2026 the Constitutional Court,
South Africa's highest court, struck down a rule that had kept these pensions
out of reach. For many spouses, retirement savings are the biggest asset built
up during the marriage.
This article explains what changed, what
the courts decided and what to do now.
What did the Constitutional Court decide about pensions
and divorce?
The Constitutional Court decided that a
divorce court may now count a spouse's pension when deciding whether to
transfer assets to the other spouse, even in a marriage that excludes all
sharing. In GD v Minister of Home Affairs and Others [2026] ZACC 39,
the court confirmed that section 7(7)(c) of the Divorce Act 70 of 1979 is
unconstitutional and invalid.
That section said pensions could not be
counted when a court considered a redistribution order, meaning an order
transferring some of one spouse's assets to the other, in marriages out of
community of property and without accrual concluded on or after 1 November
1984. The court held that the rule was irrational and unfairly discriminated
against women, and its order took effect immediately.
What is a pension interest, and how is it shared on
divorce?
A pension interest is the value of your
retirement savings that a divorce court may take into account. It is a figure
calculated as at the date of the divorce.
What counts as a pension interest?
For a pension or provident fund, it is the
amount you would have received had you resigned from your job on the date of
the divorce. For a retirement annuity, it is broadly the total contributions
paid, plus interest at a rate set by law. Once a court awards part of it to the
other spouse, the Pension Funds Act allows the fund to pay that spouse
directly, without waiting for the member to retire. This is often called the
clean break principle.
How does your marriage regime affect your pension?
Your matrimonial property regime, meaning
the set of rules that governs your property during the marriage, decides how
your pension is treated. An antenuptial contract is the marriage contract
signed before a notary before the wedding, and accrual is a system that shares
the growth in each spouse's estate during the marriage. The table summarises
the position after the October 2026 judgment.
|
Marriage regime |
What it means |
Is the pension
included on divorce? |
|
In community of property |
The
spouses share one joint estate. |
Yes.
Each spouse's pension interest forms part of the joint estate and is usually
split equally. |
|
Out of community of property,
with accrual |
Each
spouse keeps a separate estate, but the growth during the marriage is shared. |
Yes.
The pension interest counts when the growth to be shared is calculated. |
|
Out of community of property,
without accrual, married before 1 November 1984 |
Completely
separate estates. |
Yes,
if the court grants a redistribution order. This has long been the law. |
|
Out of community of property,
without accrual, married on or after 1 November 1984 |
Completely
separate estates. |
Before
October 2023, no redistribution at all. From October 2023, other assets only.
From 9 October 2026, pensions may also be included. |
What is a redistribution order, and who can ask for one?
A redistribution order is a court order
transferring part of one spouse's assets to the other where that is fair
because of what the receiving spouse contributed during the marriage. It is
available to spouses married out of community of property without accrual, the
one regime in which nothing is shared automatically.
What does the court consider?
The court must be satisfied that the order
is just and equitable, meaning fair in all the circumstances. It looks at:
·
each
spouse's direct and indirect contributions to the other's estate, including
running the home and caring for the children;
·
each
spouse's existing means and obligations;
·
any gifts
made between the spouses; and
·
any other
factor the court considers relevant.
What happened in the court cases?
EB v ER and KG v Minister of Home Affairs (2023): opening
the door
In EB (born S) v ER (born B) N.O. and Others; KG v Minister
of Home Affairs and Others [2023] ZACC 32, Mrs G had married in 1988
under an antenuptial contract that excluded all sharing. Under the old law,
only spouses married before 1 November 1984 could ask for a redistribution
order. The Constitutional Court found that this cut-off date unfairly discriminated
against women and extended redistribution to later marriages.
Its order applies on an interim basis while
Parliament finalises new legislation, and the deadline for Parliament has been
extended to 10 April 2027. That judgment left one gap, because section 7(7)(c),
which kept pensions out of the calculation, was not challenged.
GD v Minister of Home Affairs (2026): closing the pension
gap
Mr and Mrs D married on 25 April 2004 under
an antenuptial contract excluding both community of property and accrual. Mrs D
says she put the home, their three children and her husband's business first.
When she sued for divorce in 2020, she wanted his retirement annuities, which
she estimated at R1.5 million, counted in her redistribution claim. Section
7(7)(c) stood in the way.
The Eastern Cape High Court in Gqeberha
declared the section invalid in G.D v Minister of Home Affairs and Others [2025] ZAECQBHC
1. Only the Constitutional Court can finally strike down part of an
Act of Parliament, so the order went there for confirmation.
In a unanimous judgment written by Justice
Dambuza, the Constitutional Court confirmed it. Once the 1984 cut-off had
fallen away, there was no sensible reason to keep pensions out. It accepted
expert evidence that women are expected to retire with about 71% of the wealth
that men accumulate, and noted that the unpaid domestic work of married women
often helps their husbands build their savings. It refused to delay its order,
so section 7(7)(c) fell away on 9 October 2026.
M v M (2023): you still have to prove your case
The Supreme Court of Appeal's judgment in M v M [2023] ZASCA 33 shows that pension
claims are decided on evidence. The spouses were married in community of
property. The husband had withdrawn about R2.4 million from his Government
Employees Pension Fund benefit before the divorce and could not account for
about R2 million of it, yet he claimed half of his wife's pension.
The wife asked that he forfeit, or lose,
that share. The court held that she carried the burden of proving that he would
benefit unduly, and she had not done so. He kept his half share.
Does the judgment apply to my divorce?
The judgment applies to divorces decided
from 9 October 2026, but it does not reopen divorces that are already final.
The court ordered that its decision does not affect anything done before that
date, so concluded divorces and wound-up estates stay as they are.
If your divorce is still pending, the
judgment is likely to help, because the court will decide your claim under the
law as it now stands. The judgment does not deal expressly with pending cases,
though, and you may need to amend your court papers to include the pension.
Take advice quickly.
What does the ruling mean for business owners and
employers?
Business owners married without accrual can
no longer assume that their retirement annuities are safe from a divorce claim.
A spouse who supported the business, even without pay, may now ask for part of
those savings.
Employers and retirement fund trustees
should expect more court orders affecting members' benefits. A fund should pay
the non-member spouse, meaning the spouse who does not belong to the fund, only
if the order clearly names the fund and states the amount or percentage to be
paid.
What should I do now if I am divorcing?
Start by finding out what retirement
savings exist. Then follow these steps:
1. Check your marriage regime. Find your antenuptial contract and check whether accrual was
excluded and when you married.
2. List every retirement product. Include pension, provident and preservation funds and retirement
annuities, for both spouses.
3. Ask for the pension interest values. Each fund can give you a statement of the pension interest as at a
particular date.
4. Gather proof of your contributions. Keep records of your role in the home, childcare, unpaid work in
the family business and any financial support.
5. Check where your divorce stands. If it is still pending, ask your attorney whether to amend your
claim to include pensions.
6. Make sure the order is specific. The divorce order must name the fund and state the percentage or
amount, or the fund may refuse to pay.
7. Think about tax and timing. A payment from your spouse's fund is generally taxed in your hands,
and you can usually choose cash or a transfer into a retirement fund of your
own.
What is the bottom line?
The bottom line is that no spouse is now
barred from asking a court to consider a pension simply because of the date of
the marriage. That matters most to women who gave up earning to support their
families.
It is not an automatic half share. You must
still persuade the court that a transfer is fair. If your own wealth sits
mainly in retirement savings, you should understand your exposure before a
divorce starts, because early advice protects both sides.
Frequently asked questions about pensions and divorce
Can my spouse claim my retirement annuity if we married
out of community of property?
Yes, if you married without accrual and the
court finds it fair. Since the Constitutional Court's ruling of 9 October 2026,
a divorce court may include your retirement annuity when deciding a
redistribution claim, whatever the date of your marriage. Your spouse must
still prove contributions to your estate, such as running the home or
supporting your business.
Is a spouse automatically entitled to half of a pension on
divorce in South Africa?
No. Only spouses married in community of
property usually share pensions equally, as part of the joint estate. With
accrual, the pension counts towards the growth that is shared. Without accrual,
a court may award part of a pension only if it is just and equitable, based on
proven contributions during the marriage.
Does the Constitutional Court pension ruling apply to
divorces that are already final?
No. The Constitutional Court ordered that
its decision does not affect anything done or existing before 9 October 2026,
so finalised divorces and wound-up estates are not reopened. Divorces decided
after that date fall under the new position. If your divorce is still pending,
ask your attorney whether your claim should now be amended.
How is a pension interest calculated on divorce?
For a pension or provident fund, the
pension interest is the benefit you would have received had you resigned on the
date of the divorce. For a retirement annuity, it is broadly the total
contributions paid plus interest at a rate set by law. Your fund can provide a
statement showing the figure at a given date.
How long does a pension fund take to pay a divorce award?
Once the fund receives a valid divorce
order, the spouse receiving the award chooses either a cash payment or a
transfer to another retirement fund. The fund must then generally pay or
transfer within 60 days of that choice. Delays usually happen when the order
does not clearly name the fund or state the amount.
Need advice on your pension and divorce?
Whether you want to claim a share of a
spouse's pension or protect your own retirement savings, speak to us before you
sign a settlement or file court papers. With more than five decades of
experience, we will tell you plainly where you stand and what your options
cost.
Business owners and employers are welcome
too. We advise on how this ruling affects your antenuptial contract, your
retirement annuities and the divorce orders your fund receives.
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Call us: +27 (0)11 646 0335 Email: roy@bmalaw.co.za Website: bregmans.co.za |
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