- A wife challenged a law that prevented courts from considering her husband’s pension benefits when deciding whether to redistribute assets in their divorce.
- She argued that the restriction disadvantaged women who contributed to family life and their husbands’ financial success but had fewer financial resources of their own.
- The Constitutional Court declared the provision unconstitutional, finding that it irrationally differentiated on the ground of gender and unfairly discriminated against women.
Women who contribute to their families and help their husbands build wealth can end up with fewer financial resources of their own when a marriage ends.
A wife brought this up in a constitutional challenge to a law that stopped pension interests from being considered when dividing assets in certain divorces, arguing that the restriction unfairly disadvantaged women in her position.
The Constitutional Court unanimously declared the provision unconstitutional in a judgment delivered by Justice Nambita Dambuza-Mayosi on Friday, 9 October 2026. The court confirmed an earlier declaration of invalidity by the High Court in Gqeberha, finding that Section 7(7)(c) of the Divorce Act 70 of 1979 discriminated against women in marriages out of community of property without accrual.
Wife says she helped build her husband’s wealth
The couple married on 25 April 2004 under an antenuptial contract that excluded both community of property and accrual. The couple had three minor children when the matter was heard in the High Court.
Although she ran profitable business projects during the marriage, she said her main focus was managing the family and supporting her husband’s business and personal activities. She argued that her contributions helped grow and maintain his estate.
The marriage eventually broke down, and she filed for divorce on 13 October 2020. Among other things, she sought the redistribution of assets, including her husband’s pension benefits. The husband opposed her claim, saying that he had not maintained her during the marriage and that she had no right to a redistribution of his assets.
She challenged the law because it prevented a court from considering money in her husband’s retirement fund, even if the court found that redistribution was justified. In divorce law, the value placed on someone’s retirement fund benefits for purposes of divorce is called a pension interest.
She brought the constitutional challenge for herself and for other spouses affected by the provision. She did not ask the Constitutional Court to decide if she was entitled to a share of her husband’s retirement fund. Instead, she challenged the law that stopped such benefits from being considered when a court looked at whether assets should be redistributed.
Why marriages before and after 1984 were treated differently
This distinction started when the Matrimonial Property Act brought in the accrual system on 1 November 1984. Under this system, spouses can share the growth in their estates when their marriage ends.
The Divorce Act allowed for the redistribution of assets in certain divorces involving marriages out of community of property that were concluded before that date. However, section 7(7)(c) excluded pension interests from redistribution in marriages concluded on or after 1 November 1984 under arrangements that excluded both community of property and accrual.
In an earlier case, EB (born S) v ER (born B); KG v Minister of Home Affairs, the Constitutional Court found that excluding marriages after November 1984 from the redistribution remedy unfairly discriminated against women. That ruling removed the broader restriction on asset redistribution but did not resolve the separate exclusion of pension interests.
The wife argued that this remaining restriction continued to disadvantage women who contributed to their families and their husbands’ wealth but did not have similar assets or retirement savings of their own.
Gender inequality and retirement savings
The Constitutional Court looked at expert evidence about gender inequality, employment, and retirement savings. The evidence showed that women are more likely to do unpaid domestic work and care for children, which can affect their job opportunities, earnings, and ability to build wealth.
Women also tend to have less saved for retirement and less financial independence than men. The court considered how leaving out pension interests from redistribution could therefore have a bigger impact on women when marriages end.
Justice Dambuza found that the exclusion could not be justified by the difference between marriages concluded before and after 1 November 1984. Even after the earlier Constitutional Court judgment, pension interests remained an exception to redistribution without a constitutionally valid reason.
The court found section 7(7)(c) inconsistent with Section 9(1) of the Constitution because it made an irrational distinction based on gender. It also decided that the provision amounted to unfair discrimination on the basis of gender under section 9(3), including in how it treated women in marriages concluded before and after November 1984.
Minister’s request to delay the order refused
The Minister of Justice and Constitutional Development asked the Constitutional Court to suspend the declaration of invalidity for 24 to 36 months to give Parliament time to change the law. The court refused, finding that the provision served no constitutionally valid purpose and that immediate relief was appropriate.
The Constitutional Court confirmed the High Court’s declaration that Section 7(7)(c) of the Divorce Act was unconstitutional and invalid. Pension interests can now be considered alongside other assets when a court decides if redistribution is just and fair under the Divorce Act. This does not mean a spouse will automatically get half of the other spouse’s pension.
The order says that the declaration of invalidity does not affect the legal consequences of any act, omission or fact that existed before the order was made, for marriages concluded on or after 1 November 1984.
The Constitutional Court ordered the Minister of Home Affairs to pay the wife’s legal costs.
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