A divorce settlement agreement is usually the last document a couple signs together. Once a court makes it an order, undoing it is difficult and expensive.
In part one of this series, we looked at GD v Minister of Home Affairs and Others [2026] ZACC 39. On 9 October 2026, the Constitutional Court ruled that pension interest can now form part of a redistribution claim where a couple married out of community of property, with accrual excluded, on or after 1 November 1984. This second part looks at what that means for anyone negotiating a settlement.
Redistribution is discretionary, not automatic
The judgment does not mean pensions are now split down the middle. A court will only order a transfer of assets under section 7(3) if it is satisfied, in terms of section 7(4), that this is just and equitable because the spouse asking for it contributed directly or indirectly to the maintenance or growth of the other spouse’s estate during the marriage, including by rendering services or saving expenses. Section 7(5) then lists what the court must weigh in deciding how much to transfer, including each spouse’s existing means and obligations, any donations made between them during the marriage, any forfeiture order, and any other relevant factor.
Once a court includes pension interest, section 7(7)(a) deems it part of the member spouse’s assets, and section 7(8) allows the court to order the retirement fund to pay the awarded portion to the other spouse. Pension interest is a defined term in the Act and is generally not the same as the full value the member expects at retirement.
Why this matters when you are offered a settlement
Section 7(3) applies only where the spouses have not agreed on how their assets are to be divided. Under section 7(1), a court granting a divorce may make an order in line with a written settlement agreement between the parties. Once you sign a settlement that deals with the division of assets, the court will generally give effect to that agreement rather than weigh a redistribution claim. Whatever you leave out of the agreement, or sign away, is unlikely to come back later.
For a spouse married out of community of property without accrual, the GD judgment may have changed the value of what is on the table. A settlement drafted on the old assumption that the other spouse’s pension could not be touched may now leave a significant asset unaccounted for.
Five things to check before you sign
- Your marital property regime. The regime you married under decides your starting point.
- Married in community of property: there is one joint estate, generally shared equally on divorce, and pension interest forms part of it.
- Married out of community of property with accrual: the growth of each estate during the marriage is compared under the Matrimonial Property Act 88 of 1984, and pension interest is included.
- Married out of community of property without accrual: each spouse keeps a separate estate, but the court may now order redistribution under section 7(3), and since 9 October 2026 that can include pension interest in post-1984 marriages.
If you are unsure which regime applies, your antenuptial contract (or the absence of one) will tell you. Your attorney can confirm this from the registration records.
- A full picture of both estates. List everything: property, vehicles, investments, business interests, loan accounts, and every retirement product, including pension, provident and preservation funds and retirement annuities. Ask for written values. You cannot assess a settlement offer without knowing what the other side holds.
- What you would be giving up. Compare the settlement offer with what a court might reasonably award if the matter went to trial, taking your own direct and indirect contributions into account. A quick settlement can save time and legal costs, but that saving should be measured against the value you may be waiving.
- Where your divorce stands. If your divorce is still pending, ask your attorney whether the GD order affects your matter. Paragraph 3 of the order protects the consequences of acts done before 9 October 2026, and how this applies to settlement agreements already signed but not yet made an order of court will depend on the facts.
- The practical effect of a pension split. Find out how and when the fund will pay out an awarded portion, whether you can transfer it to another retirement product, and what the tax consequences are. These details should be dealt with clearly in the settlement or court order so that the fund can act on it.
Get advice before you sign
A settlement agreement can bring a divorce to a faster and less acrimonious end, and in most cases that is worth pursuing. It should, however, rest on an accurate picture of your rights and of both spouses’ finances, including retirement savings. If you were married out of community of property without accrual after 1 November 1984, the GD judgment is reason enough to have an existing offer reviewed.
Hammond Pole Attorneys’ Family Law Team assists clients with divorce settlements, redistribution claims and pension interest orders. Contact us to have your settlement agreement reviewed before you sign.
Source: GD v Minister of Home Affairs and Others (CCT 60/25) [2026] ZACC 39 (9 October 2026), available on SAFLII.