Constitutional Court Rules Pension Exclusion in Divorce Unconstitutional

The Constitutional Court has confirmed that a provision of the Divorce Act excluding certain pension interests from redistribution in divorce proceedings is unconstitutional, finding that it unfairly discriminates against women.

The ruling concerns section 7(7)(c) of the Divorce Act 70 of 1979 and follows a February 2025 judgment by the Eastern Cape High Court in Gqeberha. The High Court found that the exclusion of pension interests in certain marriages concluded out of community of property without accrual amounted to unfair discrimination on the grounds of gender and sex. The matter was referred to the Constitutional Court for confirmation in terms of section 172(2)(a) of the Constitution.

The Background to the Case

The legal dispute arose from a marriage concluded in April 2004 under an antenuptial contract providing for a marriage out of community of property without the accrual system. When the marriage broke down, the wife instituted divorce proceedings in October 2020 and sought a redistribution of her husband's pension interests. She estimated that his retirement annuity policies were worth approximately R1.5 million.

In her argument, the wife contended that excluding pension interests from redistribution placed women at a disadvantage. She argued that men were more likely to hold retirement investments, or investments of greater value, while women often entered marriages with fewer financial resources and less financial independence. These circumstances, she argued, could leave women with less bargaining power when negotiating antenuptial contracts and could contribute to financial inequality when a marriage ends.

Why the Provision Was Challenged

Section 7(7)(c) of the Divorce Act excluded certain pension interests from consideration when determining whether to redistribute assets in divorce proceedings under section 7(3). The High Court found that this exclusion unfairly discriminated against women in marriages concluded both before and after 1 November 1984, as it could prevent a financially disadvantaged spouse from obtaining a fair share of the other spouse's retirement-related assets.

The court held that the provision was inconsistent with sections 9(1) and 9(3) of the Constitution, which protect the right to equality and prohibit unfair discrimination, including discrimination based on gender and sex. The Minister of Justice subsequently submitted an explanatory affidavit to the Constitutional Court and indicated that the Minister would abide by the court's decision.

What the Constitutional Court Decided

The Constitutional Court confirmed the High Court's declaration that section 7(7)(c) was unconstitutional and invalid. The court accepted that the exclusion of pension interests could no longer be justified by a rational purpose and could not be sustained. However, the court suspended the operation of the declaration of invalidity for 24 months to allow Parliament time to amend the Divorce Act. The court also directed that the ruling would apply prospectively, in line with the request made by the Minister of Justice. The Minister of Home Affairs was ordered to pay the costs of the application.

What Does This Mean for Divorce Proceedings?

The judgment highlights the importance of pension interests when considering the financial consequences of divorce, particularly in marriages concluded out of community of property without accrual. Pension benefits can represent a substantial portion of a spouse's long-term financial resources. Excluding these interests from redistribution may leave a financially disadvantaged spouse without access to assets accumulated during the marriage, despite the contributions made to the household and the relationship.

The ruling also reinforces the constitutional principle that legislation governing divorce must not unfairly disadvantage one spouse on the basis of gender. The suspension of the declaration of invalidity means that Parliament has 24 months to address the constitutional defect in the legislation. The court's direction that the ruling applies prospectively is also important when considering its effect on existing and future divorce proceedings. The precise implications for individual cases will depend on the applicable legislation, the terms of the parties' antenuptial contract and the circumstances of the marriage.

Conclusion

The Constitutional Court's decision is a significant development in South African family law and the protection of equality in divorce proceedings. It places renewed focus on the treatment of pension interests when courts consider the redistribution of assets between spouses.

For individuals contemplating divorce, particularly those married out of community of property without accrual, the judgment underscores the importance of obtaining legal advice on their financial rights and the potential implications of their marital regime.

This article is intended for general information purposes and does not constitute legal advice. For legal advice, contact Rudolf Buys & Associates Attorneys. The outcome of any divorce matter will depend on its specific facts and the applicable law.