The facts and the road to the Constitutional Court
The applicant, Mrs D, and the third respondent, Mr D, met in 1999 and married on 25 April 2004 out of community of property and without accrual. By the time the matter reached the High Court the couple had three minor children. Mrs D’s case was that although she ran her own profitable business projects during the marriage, her main focus was managing the family and supporting Mr D in his business and personal endeavours, which materially contributed to the growth and maintenance of his estate. The marriage broke down irretrievably and she instituted divorce proceedings on 13 October 2020.
In the divorce action Mrs D sought, among other relief, a pension redistribution order in her favour, relying on the Constitutional Court’s judgment in EB (born S) v ER (born B); KG v Minister of Home Affairs [2023] ZACC 32; 2024 (1) BCLR 16 (CC); 2024 (2) SA 1 (CC). Mr D defended the action, contending that he had not maintained Mrs D during the marriage and that she had no claim to a redistribution of his assets. Because the marriage was concluded after 1 November 1984, section 7(7)(c) of the Divorce Act 70 of 1979 stood squarely in her way. That paragraph provides that the deeming of pension interest as part of a spouse’s assets under section 7(7)(a) “shall not apply to a divorce action in respect of a marriage out of community of property entered into on or after 1 November 1984 in terms of an antenuptial contract by which community of property, community of profit and loss and the accrual system are excluded”. Mrs D accordingly launched a constitutional challenge to the paragraph in parallel with the divorce proceedings, in her personal capacity and on behalf of all spouses affected by it.
Before the High Court of South Africa, Eastern Cape Division, Gqeberha, she advanced two grounds. First, that the distinction between pre- and post-1984 marriages had been held in KG to be arbitrary and irrational for purposes of redistribution orders, yet section 7(7)(c) perpetuated that very distinction for pension interest, contrary to section 9(1) of the Constitution. Second, that the exclusion of pension interest unfairly discriminated on the grounds of gender and sex, contrary to section 9(3), for the same reasons that led the Court to invalidate section 7(3) in KG. She tendered the joint report of Prof Elsje Bonthuys and Dr Azille Coetzee that the Constitutional Court had considered in KG, a further report by Prof Bonthuys on the legislative history of the provision and the gendered treatment of pension benefits on divorce, and a report by forensic actuary Mr Willem Hendrik Boshoff on the employment earnings and retirement savings of women in South Africa. None of the respondents opposed the matter in the High Court.
The High Court, in GD v Minister of Home Affairs [2025] ZAECGQBHC 1; 2025 (5) 438 (ECGq), upheld both grounds. It found that the pre- and post-1984 distinction in the impugned provision was arbitrary differentiation under section 9(1) and that, although a date of marriage is not a listed ground, the burden of excluding post-1984 marriages from pension redistribution fell more heavily on women than men and therefore amounted to indirect discrimination on the listed grounds of gender and sex. It held that the respondents had not discharged the onus of justifying the limitation under section 36(1), concluded that the whole of section 7(7)(c) was invalid because it served no purpose beyond excluding post-1984 spouses from claiming redistribution of pension interest, and declined to suspend its declaration under section 172(1)(b)(ii), holding that a “simple declaration of invalidity is sufficient”. The declaration was prospective only. The matter then came before the Constitutional Court for confirmation under section 172(2)(a) and (d) of the Constitution.
Why the pension exclusion could not survive the KG judgment
Dambuza J, writing for a unanimous Court, began by setting the impugned provision against the section it was designed to accompany. Before KG, section 7(3) permitted a court granting a decree of divorce in respect of a marriage out of community of property “entered into before the commencement of the Matrimonial Property Act, 1984” by an antenuptial contract excluding community of property, community of profit and loss and accrual sharing, to order a just transfer of assets from one spouse to the other. The Matrimonial Property Act 88 of 1984, which came into force on 1 November 1984, introduced both that cut-off and section 7(7)(c). The two provisions were thus products of the same legislative scheme.
In EB and KG the Court had held that the exclusion of post-1984 marriages from section 7(3) was not irrational for purposes of section 9(1), because there was then a legitimate distinction between pre- and post-1984 marriages: the redistribution remedy compensated spouses in older marriages for the absence of the accrual system that the Matrimonial Property Act introduced. The Court nonetheless struck the exclusion down as unfair gender discrimination under section 9(3) that could not be justified under section 36(1). Section 7(7)(c) was not challenged in that litigation and its constitutionality was never addressed.
The decisive point in the present matter is that KG dismantled the scheme that gave section 7(7)(c) whatever rationale it once had. As the Court observed at paragraph 35, “The broader legislative scheme in which pre- and post-1984 marriages were addressed differently no longer exists.” Both Mrs D and the Minister of Justice and Constitutional Development filed extensive submissions on the purpose of excluding pension interest from redistribution in post-1984 marriages, and both agreed that the exclusion was inherently tied to the pre-KG scheme. With section 7(3) now applying to all marriages out of community of property without accrual, the Divorce Act explicitly contemplates both the redistribution of assets in appropriate circumstances and, through section 7(7)(a), the inclusion of pension interest in the assets subject to redistribution. The Court’s conclusion at paragraph 36 is emphatic: “The exclusion of post-1984 marriages from the redistribution of pension interest, unlike any other asset, is vestigial. The distinction it creates is no longer connected to any rational purpose and cannot be sustained.” Mrs D had also pointed out that there is no rational reason to permit a full redistribution of all assets where spouses hold no pension interest, but only a partial redistribution where one or both of them do. The Court therefore found a breach of section 9(1) even though the parallel exclusion in section 7(3) had earlier survived the rationality enquiry.
Unfair discrimination, the gendered pensions gap and the absence of justification
Having found irrationality, the Court held that “little more need be said” on the section 9(3) challenge, because its reasoning in KG applied equally. The expert evidence of Prof Bonthuys and Mr Boshoff showed that “the pernicious wealth gap between men and women identified in KG exists equally in relation to pension interest”. The judgment records the applicant’s evidence that women typically enter marriage poorer and less financially independent than men, with correspondingly less bargaining power when concluding antenuptial contracts, that they are less securely employed and concentrated in lower-paid sectors, and that South Africa has among the highest mean and median gender-income gaps. Women are more likely to perform unremunerated household work, which confines them to the home and frees their husbands to pursue professional development and wealth accumulation. Mr Boshoff’s report showed that women are expected to retire with approximately 71% of the wealth accumulated relative to men and to receive only 74% of the retirement income, that 45% of men hold pension savings compared with 43.4% of women, and that older women, who bore the brunt of the historical income gap, are likely to have accumulated even less. The Court endorsed the High Court’s finding that excluding pension interest from redistribution “would thus disproportionately impact women in divorce proceedings, who are less likely to have pension interest of their own or would likely have lower pensions than their partners in the event that they do”.
The judgment then situates the finding within the discretionary structure of section 7. At paragraph 38 the Court held that unpaid domestic labour and domestic expenses are disproportionately borne by married women to the benefit of husbands who devote more time to career advancement and more resources to their pensions, and that such direct and indirect contributions “may be competently examined by a court during divorce proceedings with a view to a just and equitable division of assets” under sections 7(4) and 7(5). A court exercising that discretion may also weigh the freedom of couples to choose their marital arrangements against the disparities in bargaining power that often characterise them. The impugned provision could not be argued to protect the “illusory freedom of choice” canvassed in KG. Mrs D had made the point that no spouse could plausibly have selected a matrimonial regime on the strength of section 7(7)(c) alone and that, even if they had, the reasons for rejecting choice as a justification in KG applied with greater force here. She also relied on the international law considered in KG, which requires redistribution in all marriages without the exclusion of any asset type.
On justification the Court’s reasoning is compact. Given the structured discretion the courts already enjoy in divorce proceedings, the explicit exclusion of post-1984 marriages could not be justified under section 36(1) even if the distinction had been rational within the post-KG scheme. As it stood, the distinction was not rational, and “an irrational distinction cannot, by definition, be justified under section 36(1)”. No respondent had attempted to discharge the onus under section 9(5) of showing the discrimination to be fair; the Minister of Home Affairs, who administers the Divorce Act, declined to participate at all despite repeated requests, and Mr D made no submissions in either court. The High Court was therefore correct and its declaration fell to be confirmed.
Remedy, the refusal to suspend, condonation and costs
The real contest in the Constitutional Court was over remedy. The parties agreed that the declaration had to be prospective so that concluded divorces and wound-up estates would not be disturbed, but they parted ways on whether it should take immediate effect. The Minister of Justice, who filed an explanatory affidavit and a notice to abide, submitted that matrimonial legislation is replete with policy considerations that Parliament is best placed to address, pointed to the ongoing matrimonial property reform project of the South African Law Reform Commission, and asked for a suspension of 24 to 36 months coupled with interim relief providing that section 7(7) applies without paragraph (c), mirroring the approach in EB and KG. She stressed that the matter had no implications for the Pension Funds Act 24 of 1956, that pension funds already implement redistribution orders under section 7(8) of the Divorce Act, and that pension interest would not become automatically divisible but would simply fall into the asset pool subject to the just and equitable standard of section 7(3).
The Court declined to follow that course. It noted that roughly three years had passed since EB and KG, that the interim reading-in granted there remained operative in respect of section 7(3), and that on 19 September 2025 the Minister had already obtained an 18-month extension of the 24-month suspension in that matter, which was due to expire on 10 October 2025 and now runs to 10 April 2027, on the strength of the draft General (Family) Laws Amendment Bill, B 20 of 2025, and supervening events including the 2024 national elections. If Parliament was already attending to the defects through the Amendment Bill, it seemed unnecessary to suspend this declaration beyond the timeframe already established. More fundamentally, the Court explained at paragraph 43 why the KG model of suspension plus reading-in did not fit: in KG the exclusion of post-1984 marriages was one component of section 7(3), and an interim reading-in vindicated rights without disturbing the broader function of the provision, whereas “section 7(7)(c) functions solely to exclude post-1984 marriages from the redistribution of pension assets. It serves no constitutionally compliant function and has no additional impact on the overall coherence of the legislative scheme. There is thus no latitude for this Court to grant an interim remedy similar to EB and KG.” The Court added, for emphasis, that the Amendment Bill would itself remove section 7(7)(c) entirely and make the KG reading-in permanent, so that “the legislative remedy proposed is identical to the remedy available immediately before this Court”, and that there was no guarantee the Bill would be adopted or signed into law. Relying on Mazibuko v Sisulu [2013] ZACC 28; 2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC) and New Nation Movement NPC v President of the Republic of South Africa [2020] ZACC 11; 2020 (6) SA 257 (CC); 2020 (8) BCLR 950 (CC), it reiterated that there is no merit in delaying a constitutional challenge on the basis of purportedly imminent reforming legislation.
The practical effect, set out at paragraph 46, is that pension interest is now simply dealt with as part of the assets subject to redistribution under sections 7(3) and 7(8), falling within the ambit of the existing EB and KG suspension and interim remedy. The order has no retrospective effect and does not affect finalised divorces or wound-up matrimonial estates. Paragraph 3 of the order preserves the legal consequences of any act, omission or fact existing before 9 October 2026 in relation to marriages concluded on or after 1 November 1984.
Two ancillary rulings deserve mention. The Minister of Justice filed her explanatory affidavit on 21 April 2026, more than a year after the confirmation application was launched on 19 March 2025, and her written submissions on 21 May 2026, five days before the hearing. Applying S v Mercer [2003] ZACC 22; 2004 (1) SACR 1 (CC); 2004 (2) BCLR 109 (CC); 2004 (2) SA 598 and Van Wyk v Unitas Hospital (Open Democratic Centre as Amicus Curiae) [2007] ZACC 24; 2008 (2) SA 472; 2008 (4) BCLR 442 (CC), the Court described the delay as “unquestionably negligent, unreasonable, and impertinent” and the explanation as “lamentable”, yet granted condonation because the Minister’s input on remedy was critical in the absence of any opposition and the applicant suffered no prejudice. On costs, the Court applied the ordinary rule that costs follow the result, noted that the challenge involved legislation of some complexity and that no party opposed a costs order in Mrs D’s favour, and directed the Minister of Home Affairs, the custodian of the Divorce Act who had declined to engage, to pay her costs, as had been done in the High Court and in KG.
Questions and Answers
What provision was struck down in this case?
Section 7(7)(c) of the Divorce Act 70 of 1979, which provided that the deeming of a party’s pension interest as part of his assets under section 7(7)(a) does not apply to a divorce action in respect of a marriage out of community of property entered into on or after 1 November 1984 by an antenuptial contract excluding community of property, community of profit and loss and the accrual system.
What was the effect of section 7(7)(c) before this judgment?
In a marriage concluded on or after 1 November 1984 out of community of property and without accrual, a spouse could, after the KG judgment, apply for a redistribution of assets under section 7(3), but the other spouse’s pension interest was excluded from the assets that could be redistributed. Mrs D’s position illustrates it: had redistribution been granted, it would necessarily have excluded Mr D’s pension interest, which had far more value than her own estate.
On what two constitutional grounds was the provision found invalid?
The Court found that section 7(7)(c) differentiates irrationally on the ground of gender in violation of section 9(1) of the Constitution, and that it unfairly discriminates on the ground of gender in violation of section 9(3) by differentiating between women in pre- and post-1984 marriages out of community of property and without accrual.
Why did the rationality challenge succeed here when it failed in respect of section 7(3) in KG?
In EB and KG the Court held that the exclusion of post-1984 marriages from section 7(3) was not irrational because a legitimate distinction then existed between pre- and post-1984 marriages, the redistribution remedy compensating older marriages for the absence of accrual. Once KG struck down that exclusion, the legislative scheme that treated the two categories differently ceased to exist. Section 7(7)(c) was described as vestigial, no longer connected to any rational purpose.
How did the Court approach the unfair discrimination enquiry?
It held that its reasoning in KG applied equally. The expert evidence of Prof Bonthuys and Mr Boshoff demonstrated that the wealth gap between men and women identified in KG exists equally in relation to pension interest, so that excluding pension interest from redistribution disproportionately impacts women, who are less likely to have pension interest or likely to have lower pensions than their husbands. Date of marriage is not a listed ground, but the burden of the exclusion fell more heavily on women, constituting indirect discrimination on the grounds of gender and sex.
Who bore the onus of proving that the discrimination was fair, and was it discharged?
Under section 9(5) of the Constitution, discrimination on a listed ground is unfair unless it is established that it is fair. No respondent attempted to discharge that onus. The Minister of Home Affairs declined to participate despite repeated requests, Mr D made no submissions, and the Minister of Justice filed a notice to abide.
Could the limitation be justified under section 36(1)?
No. The Court held that, given the structured discretion courts already enjoy under sections 7(3), 7(4) and 7(5), the explicit exclusion of post-1984 marriages could not be justified even if the distinction were rational, and that an irrational distinction cannot, by definition, be justified under section 36(1).
What role did the “freedom of choice” argument play?
The Court held that section 7(7)(c) cannot be argued to protect the illusory freedom of choice canvassed in KG. No spouse could plausibly have chosen a matrimonial regime on the basis of section 7(7)(c) alone, and courts may in any event weigh the freedom of couples to choose their marital arrangements against the disparities in bargaining power that often characterise those arrangements.
Why did the Court refuse to suspend the declaration of invalidity?
Because section 7(7)(c) functions solely to exclude post-1984 marriages from the redistribution of pension assets, serves no constitutionally compliant function and has no bearing on the coherence of the wider scheme. Unlike the exclusion in section 7(3), which was one component of a provision that otherwise functioned lawfully, there was nothing to preserve by suspension and interim reading-in. A suspension would fail to vindicate the very rights violated.
What is the status of the suspension granted in EB and KG?
On 19 September 2025 the Minister of Justice obtained an 18-month extension of the 24-month suspension, which was due to expire on 10 October 2025. It now expires on 10 April 2027 and the interim reading-in of section 7(3) remains operative. Pension interest now simply falls within that interim regime as part of the assets subject to redistribution.
What is the General (Family) Laws Amendment Bill and did it affect the outcome?
It is a draft Bill, B 20 of 2025, which would make permanent the interim relief granted in KG in respect of section 7(3) and remove section 7(7)(c) entirely. The Court held that there is no guarantee Parliament will adopt it or that the President will sign it, and that there is no merit in delaying a constitutional challenge on the basis of purportedly imminent reforming legislation, as held in Mazibuko v Sisulu and New Nation Movement NPC v President of the Republic of South Africa.
Does the order apply retrospectively to finalised divorces?
No. Paragraph 3 of the order provides that the declaration shall not affect the legal consequences of any act done or omission or fact existing before the order was made in relation to any marriage concluded on or after 1 November 1984. Concluded divorce proceedings and wound-up marital estates are left undisturbed.
Does the judgment mean that pension interest is now automatically divided on divorce?
No. The Minister of Justice’s submission, which the Court accepted in substance, was that pension interest is not automatically divisible. It forms part of the asset pool that a court considers for redistribution under section 7(3), subject to the structured judicial discretion in sections 7(4) and 7(5) and the just and equitable standard, and pension funds give effect to any order under section 7(8).
What did the Court say about the Minister of Justice’s late filing?
The explanatory affidavit was filed on 21 April 2026, over a year after the application was launched, and written submissions on 21 May 2026, five days before the hearing. Applying S v Mercer and Van Wyk v Unitas Hospital, the Court found the delay unquestionably negligent, unreasonable and impertinent and the explanation lamentable, but granted condonation in the interests of justice because the Minister’s input on remedy was critical in the absence of opposition and the applicant was not prejudiced.
Who was ordered to pay the costs and why?
The Minister of Home Affairs, as the official responsible for administering the Divorce Act, was ordered to pay Mrs D’s costs. Costs follow the result, the challenge concerned legislation of some complexity, no party opposed a costs order in her favour, and the same order had been made by the High Court and by the Constitutional Court in KG.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of iDivorce and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here and here. For free and useful Family Law tech applications visit Maintenance Calculator, Court Day Calculator and Accrual Calculator.
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