The Constitutional Court has ruled that excluding pension interests from the redistribution of assets in certain divorce cases violates the constitutional right to equality, finding that the law unfairly disadvantages women.

In a judgment delivered on Friday, the apex court upheld a declaration that Section 7(7)(c) of the Divorce Act is unconstitutional and invalid, reports The Citizen.

The ruling follows a February 2025 judgment by the Eastern Cape High Court (Gqeberha), which found the exclusion of pension interests under the provision amounted to unfair gender discrimination.

The matter was referred to the Constitutional Court for confirmation under section 172(2)(a) of the Constitution.

The legal battle arose from a marriage in which a husband and wife entered into an ante-nuptial contract in April 2004. The agreement provided for a marriage out of community of property without accrual, meaning the spouses would maintain separate estates and would not share in the growth of each other’s assets under the accrual system.

The marriage eventually broke down, with the wife instituting divorce proceedings in October 2020.

As part of the proceedings, she sought a redistribution of her husband’s pension interests. The High Court judgment recorded her estimate that his retirement annuity policies were worth approximately R1.5m.

Judge Nambitha Dambuza highlighted the wife’s argument 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.

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.

Dambuza noted that Justice Minister Mmamoloko Kubayi subsequently submitted an explanatory affidavit and notified the Constitutional Court that she would abide by its decision.

The apex court held that the exclusion of pension interests could no longer be justified by ‘any rational purpose and cannot be sustained’, according to The Citizen.

Dambuza determined that section 7(7)(c) was inconsistent with sections 9(1) and 9(3) of the Constitution. 

As a result, the 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.

Dambuza also directed that the ruling would apply going forward in line with the Justice Minister’s request. Furthermore, the Minister of Home Affairs was ordered to pay the costs of the application.

Full report in The Citizen