On 9 October 2026, the Constitutional Court handed down a judgment that changes what some divorcing spouses may be entitled to. In the first part of this two-part series, we look at what the Court decided and why. Part two covers what the judgment means for anyone negotiating a divorce settlement.
In GD v Minister of Home Affairs and Others [2026] ZACC 39 (CCT 60/25), a unanimous Court confirmed that section 7(7)(c) of the Divorce Act 70 of 1979 is unconstitutional and invalid. That provision kept a spouse’s pension interest out of any redistribution of assets where the couple had married out of community of property, with the accrual system excluded, on or after 1 November 1984.
What the case was about
Mr and Mrs D married in April 2004 out of community of property and without accrual. Mrs D’s case was that, although she ran her own business projects, her main focus during the marriage was managing the family and supporting her husband’s business, which helped his estate grow. When she instituted divorce proceedings in 2020, she asked the court to transfer part of his pension interest to her. Because the couple married after 1 November 1984, section 7(7)(c) blocked that claim.
Some background helps here. In 2023, in EB v ER; KG v Minister of Home Affairs [2023] ZACC 32, the Constitutional Court found that restricting redistribution under section 7(3) of the Divorce Act to marriages concluded before 1 November 1984 discriminated unfairly against women. Since then, under interim relief granted in that case, a spouse in any marriage out of community of property without accrual can ask the court for a redistribution of assets. Pension interest, however, remained excluded for post-1984 marriages because section 7(7)(c) had not been challenged.
In GD, the Court held that this leftover exclusion no longer served any rational purpose, describing it as vestigial. It also accepted expert evidence that the gap in wealth between men and women extends to retirement savings. According to the actuarial report before the Court, women are expected to retire with roughly 71% of the wealth accumulated by men. Women also tend to carry more unpaid domestic work, which frees their husbands to build careers and pension savings. Excluding pensions from redistribution therefore fell more heavily on women, in breach of sections 9(1) and 9(3) of the Constitution.
What the Court ordered
The Court declined the Minister of Justice’s request to suspend the declaration of invalidity for 24 to 36 months. The order took effect immediately on 9 October 2026. It is not retrospective: it does not affect the legal consequences of anything done, or any fact that existed, before the order was made in relation to marriages concluded on or after 1 November 1984. Finalised divorces and wound-up marital estates are left as they are.
In practical terms, pension interest is now treated like any other asset that a court may consider when deciding a redistribution claim under section 7(3).
Legislation is still catching up
The Court noted that the draft General (Family) Laws Amendment Bill (B 20 of 2025) would remove section 7(7)(c) altogether and make permanent the interim relief granted in the 2023 KG judgment. The suspension period in KG has been extended to 10 April 2027 to give Parliament time to act. Until that legislation is passed, the interim position set by the Constitutional Court applies.
Coming up in part two
The judgment matters most to spouses who are negotiating a divorce settlement now. In part two, we look at how a court decides a redistribution claim, why signing a settlement can close the door on one, and what to check before you put your name to an agreement.
Hammond Pole Attorneys’ Family Law Team assists clients with divorce settlements, redistribution claims and pension interest orders.
Source: GD v Minister of Home Affairs and Others (CCT 60/25) [2026] ZACC 39 (9 October 2026), available on SAFLII.