The Constitutional Court yesterday heard arguments in an application to have a section of the Divorce Act declared unconstitutional, which prevents spouses married out-of-community of property (without accrual) from claiming a share of each other’s pension interests at divorce, writes The Star.

In February last year, the Eastern Cape High Court (Gqeberha) declared that section 7(7)(c) of the Divorce Act is unconstitutional and invalid.

It is argued that the fundamental problem with the section is that it excludes pension interests from the redistribution remedy that is now available in respect of all marriages concluded out of community of property and without accrual, regardless of the date of their conclusion.

Section 7(7)(a) of the Divorce Act allows for pension interests to be deemed part of a spouse’s assets when calculating patrimonial benefits.

However, section 7(7)(c) creates an exception.

It does not apply to couples married out of community of property without the accrual system after November 1984.

The application by a divorcing woman, only identified as GD, against Home Affairs and the Justice Minister was referred to the Constitutional Court for the final say on the matter.

Law firm Bowmans earlier commented that if the High Court’s order of validity is confirmed by the apex court, it removes the financial shield wealthier spouses in an out-of-community of property without accrual marriage have traditionally enjoyed regarding retirement funds.

Spouses will then be able to access each other’s pension interest as part of their divorce settlement.

GD (the applicant) is challenging – among other arguments – the constitutionality of the section of the Act that excludes consideration for the division of assets or maintenance for parties married after November 1984 under the marriage regime she and her husband had entered into.

One of her objections is that section 7(7)(c) creates an arbitrary differentiation between people married before and after 1984, says The Star.

The applicant relied on an earlier Constitutional Court judgment in which the court struck down provisions of the Act that prevented redistribution in divorce proceedings for marriages concluded after 1984 out of community of property and without accrual.

In that case, the apex court found that the provisions unfairly discriminated against women in marriages, as they prevented courts from considering unpaid labour, primarily contributed by women, in relation to redistribution in divorce proceedings.

GD in the present proceedings argues that this is a similar matter and wants the court to confirm the earlier Eastern Cape High Court ruling of constitutional invalidity.

Full report in The Star