Can my spouse claim my pension on divorce if we married out of community of property without accrual?

 

Written by Roy Bregman, admitted attorney with over 51 years' experience in family law and divorce.

Last updated: 18 October 2026

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.

Call us: +27 (0)11 646 0335 Email: roy@bmalaw.co.za Website: bregmans.co.za

 This article is general information, not legal advice. Every divorce turns on its own facts, so please speak to an attorney about your situation.

 

What Happens to Foreign Assets When Someone Dies in South Africa?

 

Written by Roy Bregman, admitted attorney with over 51 years' experience in wills and deceased estates.

Last updated: 15 October 2026

Key Takeaways •        A South African executor has no automatic power over assets abroad. Each foreign country usually requires its own local court process before a bank or property registry will release anything. •        If the deceased was ordinarily resident in South Africa, the estate must declare assets worldwide, and estate duty and capital gains tax can apply to foreign property, with relief for foreign death taxes paid. •        Land follows the law of the country where it is situated, while money and shares usually follow the law of the deceased's permanent home country. •        A separate, carefully worded will for each country, which does not cancel the South African will, is the best way to save your family time and money.

 

More South Africans than ever own something overseas: a flat in London, a share portfolio in Europe, a pension in Australia or a bank account opened for a child studying abroad. When the owner dies, the family often discovers that the South African executor cannot simply phone the foreign bank and ask for the money.

This guide explains how foreign assets are handled when a South African estate is wound up, what the courts have said recently and what you should do. It also covers foreigners who die owning property here.

Can a South African executor deal with assets overseas?

No, not on their own authority. The Letters of Executorship issued by the Master of the High Court, the official document appointing the executor, are only recognised inside South Africa. A bank in England or a land registry in Portugal will want an appointment made or recognised under its own law.

A country's legal power stops at its borders (called territoriality). The executor must still list foreign assets in the estate inventory, but someone recognised abroad has to collect them.

The two ways to unlock foreign assets

The first is resealing, where a foreign court stamps the South African appointment so that it also works there. Only some countries, mostly with British links, allow this. The more common route is to appoint a local lawyer to apply for probate, the foreign court's confirmation of the will and of who may deal with the estate.

Which country's law decides who inherits foreign assets?

It depends on the type of asset. Our courts use rules known as the conflict of laws to decide which country's law applies.

Land and buildings follow the law of the country where they are

Immovable property, meaning land and anything built on it, is governed by the law of the place where it is situated. Lawyers use the Latin term lex situs, which simply means "the law of the place where the property is". If that country has forced heirship rules, which reserve a fixed share for children, those rules can override what your will says.

Money, shares and other movables follow the deceased's home country

Movable property, such as bank balances, shares and vehicles, is generally governed by the law of the deceased's domicile at death. The Latin term is lex domicilii, meaning "the law of the person's permanent home". Domicile is the country a person regards as their permanent home, which is not always where they happen to be living.

The marriage question

Before the estate is valued, you must separate the deceased's share from the surviving spouse's share. That depends on which country's marriage property law applies, a rule that changed in 2026.

Quick comparison: who does what?

Situation	Who must authorise the process	Which law decides inheritance	What is usually needed
South African resident owns land abroad	Court or registry in the foreign country	Law of the country where the land is	Local lawyer and a foreign grant, or resealing
South African resident owns foreign bank accounts or shares	Foreign bank or court, under local rules	Usually South African law, as the home country	Foreign grant or the bank's own small-estate procedure
Foreign resident owns land in South Africa	South African Master of the High Court	South African law, for the land	New appointment, or signing and sealing of foreign letters
Foreign resident owns only movables in South Africa	South African Master, using a simplified procedure	Law of the deceased's home country	Affidavit and proof that local creditors are protected

What happens when a foreigner dies owning property in South Africa?

Nobody may deal with the South African assets without the Master's authority. Section 13 of the Administration of Estates Act 66 of 1965 prohibits winding up an estate here except under letters issued or recognised by the Master.

Where the foreign executor was appointed in a proclaimed country, a short list that includes the United Kingdom, Ireland, Namibia, Botswana, Zimbabwe, New Zealand and certain Australian and Canadian states, the Master can sign and seal the foreign letters under section 21. This gives them the same effect as a South African appointment. For all other countries, a fresh application for appointment is needed.

An executor living abroad must choose a domicilium citandi et executandi, which simply means an official South African address where legal notices can be delivered. The Master may also require security, a guarantee bond that protects the estate against loss. If the deceased left only movable property here, section 25 allows a quicker procedure, provided local creditors are not prejudiced.

Does SARS tax foreign assets in a South African estate?

Yes, if the deceased was ordinarily resident in South Africa at death. Assets are included in the estate wherever they are situated. Estate duty is charged at 20% on the dutiable estate up to R30 million and 25% above that, after a R3.5 million deduction known as the abatement.

Some foreign assets may be excluded, for example those acquired before the person first became ordinarily resident here or inherited from someone who was not resident here. Where foreign death duties were paid on the same asset, a rebate (a credit against South African duty) is available. Capital gains tax on death also applies to worldwide assets, and exchange control rules govern how money comes home or goes to heirs abroad.

What have the courts said recently about foreign assets in estates?

Our courts respect the home country's role while protecting South African creditors and heirs. No Supreme Court of Appeal or Constitutional Court judgment in the last three years deals squarely with foreign assets in a deceased estate, but these decisions show the courts' approach.

Scheer v Wagner N.O. and Others [2026] ZASCA 32

Mr Scheer, domiciled in Austria, was declared insolvent in both Austria and South Africa. His South African estate would show a surplus after local creditors were paid, while Austrian creditors were owed more than €4.4 million, about R81 million. The Austrian trustee asked for the surplus to be sent to Austria.

The Supreme Court of Appeal agreed. Recognition rests on comity, the mutual respect courts show each other and is only available where the person was domiciled in the foreign country. Local creditors are paid first, then the balance goes home. The same principles guide cross-border deceased estates.

Ebeling v Koch and Others [2025] ZAWCHC 59

Mrs Ebeling's will dealt with her South African estate, and she also had a substantial estate in Germany. Her adopted daughter alleged that two German residents had taken about R1.4 million from her bank account, partly to buy a property in Mossel Bay.

A full bench of the Western Cape High Court held that she could sue as a potential heir, even with no executor in office, and confirmed the attachment of the Mossel Bay property. Attaching property here gives a South African court power over people living abroad.

Brand v D.B and Another [2026] ZAWCHC 216

The deceased had transferred six apartments in Munich to his son, and his estranged wife challenged those transfers in the German courts. She then asked the South African court to remove the executor, partly because he had opposed her German litigation.

A full bench set aside the removal order. The German courts had ruled against her, so the executor's stance was reasonable and had been vindicated. Hostility between an executor and an heir is not, on its own, a reason to remove an executor.

N.P. v Minister of Justice and Constitutional Development and Others [2026] ZAWCHC 343

This judgment declared unconstitutional the old rule that a marriage's property consequences are decided by the husband's domicile when the couple married. The court replaced it with a sex-neutral test: the law the couple chose, failing which their common domicile, habitual residence, nationality or closest connection.

The new rule does not apply to marriages already ended by death or divorce before 23 June 2026, and steps already taken under the old rule stand. It is a High Court ruling, so watch for any appeal. It will matter for estates where a spouse dies in future.

What should you do if a loved one left assets overseas?

Find out exactly what exists and where, then let your attorney coordinate each country:

1.     List every foreign asset. Record the country, type, institution and estimated value, using bank statements, share certificates and title deeds.

2.     Find every will. Ask whether the deceased signed a will abroad. Check whether a later foreign will contains a clause cancelling "all previous wills", as this can unintentionally cancel the South African will.

3.     Report the estate to the Master. The inventory must include the foreign assets, even though they will be dealt with abroad.

4.     Appoint a lawyer in each foreign country. Your attorney can instruct them to reseal the South African appointment or apply for a local grant.

5.     Deal with tax on both sides. Keep proof of any foreign death taxes paid, so that a rebate can be claimed against South African estate duty.

6.     Bring the proceeds home or pay heirs abroad. Funds move through an authorised dealer (a bank approved by the Reserve Bank), and the final figures go into the Liquidation and Distribution account, the executor's final statement of the estate.

How can you protect your family from a cross-border estate headache?

Plan now. If you own assets abroad, sign a separate will for each country, drafted to work alongside your South African will without cancelling it. Keep a simple register of your foreign assets with your will, and review both whenever you buy, sell or move.

If you are already administering an estate with foreign assets, early advice saves months of delay and brings the estate to a proper close.

Frequently asked questions

Do I need a separate will for assets overseas?

It is strongly recommended. A South African will can cover worldwide assets, but foreign courts may require local formalities, and land follows the law of the country where it is situated. A separate will for each country, drafted so that it does not cancel your South African will, usually speeds up the process and reduces costs for your heirs.

Can a South African executor sell property overseas?

Not on the strength of South African Letters of Executorship alone. The executor must first be recognised in that country, either by having the South African appointment resealed, where the country allows it, or by a local lawyer obtaining a grant from the foreign court. Only then will a foreign land registry accept a sale or transfer.

Is estate duty payable on foreign assets in South Africa?

Yes, if the deceased was ordinarily resident in South Africa at death, foreign assets form part of the estate for estate duty. Duty is 20% up to R30 million and 25% above that, after a R3.5 million abatement. Certain foreign assets are excluded, and foreign death duties paid on the same assets can be credited against South African duty.

How long does it take to wind up an estate with foreign assets?

Expect longer than a purely South African estate. A local estate often takes nine to eighteen months, and each foreign country adds its own court process, tax clearance and banking checks. Starting the foreign applications early, while the South African estate is reported, is the most effective way to avoid unnecessary delays.

What happens if a foreigner dies owning property in South Africa?

The South African Master of the High Court must authorise anyone dealing with the property. If the foreign executor was appointed in a proclaimed country, such as the United Kingdom, the Master can sign and seal those letters. Otherwise, a new South African appointment is needed, usually through a local attorney acting under power of attorney.

 

Need help with foreign assets in an estate? Talk to us today

Whether you are an executor, an heir or a business owner planning ahead, we will coordinate every country involved so that your family is not left waiting. Since 1974, Bregman Moodley Attorneys Inc. has been taking the sting out of legal problems, and your first consultation is free and without obligation.

•        Call: +27 (0)11 646 0335

•        Email: roy@bmalaw.co.za

•        Website: www.bregmans.co.za

•        Visit: Suite 316, Killarney Mall, Riviera Road, Killarney, Johannesburg

Bee at Ease! Contact us today and let us take the sting out of your cross-border estate.

This article is general information and not legal or tax advice. Please consult an attorney about your specific circumstances.