By Lehlohonolo Lehana.
The Constitutional Court confirmed the invalidity of Section 7(7) (c) of the Divorce Act, finding that the provision unfairly discriminates against women married out of community of property without accrual.
Last year, the Eastern Cape Division of the High Court found the section invalid.
The Eastern Cape High Court had found that Section 7(7)(c) unfairly discriminated against women in marriages concluded before and after 1 November 1984 on the grounds of gender and sex.
The case centred on a woman who married in 2004 and later instituted divorce proceedings after the relationship irretrievably broke down.
Although she had engaged in profitable business projects during the marriage, she told the court that much of her focus had also been on managing the family and supporting her husband’s business and personal endeavours.
She sought, among other forms of relief, an order allowing her to claim a share of her husband’s pension interest.
Her husband opposed the claim, arguing that he had not maintained her during the marriage and that she had no entitlement to redistribution of his assets.
The woman challenged the relevant provision of the Divorce Act, arguing that it created an irrational distinction between marriages concluded before and after November 1984 and unfairly discriminated against women.
The Constitutional Court agreed, finding that the exclusion of pension interest from redistribution could not be justified when other marital assets could be considered.
In a judgment delivered on Friday, 9 October 2026, the apex court upheld a declaration that Section 7(7)(c) of the Divorce Act is unconstitutional and invalid.
Justice Nambitha Dambuza handed down the judgment, upholding an Eastern Cape High Court ruling.
The provision in question is Section 7(7)(c) of the Divorce Act 70 of 1979. It provides that pension interest cannot be treated as part of a spouse’s assets when determining the patrimonial benefits of a divorce involving a marriage concluded on or after 1 November 1984 under an antenuptial contract that excludes community of property, community of profit and loss, and the accrual system.
In contrast, Section 7(7)(a) generally provides that a spouse’s pension interest must be regarded as part of their assets when determining the financial benefits to which the parties may be entitled during divorce proceedings, subject to the exceptions in the legislation.
The Constitutional Court found that the exclusion in Section 7(7)(c) was no longer rationally justifiable and unfairly discriminated against women.
Dambuza highlighted the wife’s argument before the ConCourt that the exclusion of pension interests disproportionately affected women because husbands were more likely to have retirement investments, or to hold investments of greater value.
She further argued that women typically entered marriages “poorer” and less financially independent” than men and therefore, wives had less “bargaining power” when negotiating ante-nuptial contracts.
“She maintains that… a large number of women rely on their partners’ retirement investments rather than contributing independently to their own due to women’s income often being absorbed by household expenses whilst men, who earn more on average, are more likely to invest in retirement schemes,” the judge continued.
In considering the matter, the apex court held that the exclusion of pension interests could no longer be justified by “any rational purpose and cannot be sustained”.
Dambuza determined that Section 7(7)(c) was inconsistent with Sections 9(1) and 9(3) of the Constitution.
Section 9(1) guarantees everyone equal protection and benefit of the law, while Section 9(3) prohibits the state from unfairly discriminating, directly or indirectly, against anyone on grounds including gender and race.
As a result, Constitutional Court confirmed the high court’s declaration of invalidity with immediate effect, but suspended the operation of the invalidity order for 24 months to give Parliament time to amend the Divorce Act.