Case  CCT 60/25
[2026] ZACC 39

Hearing Date: 26 May 2026

Judgement Date: 09 October 2026

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Friday, 9 October 2026, the Constitutional Court handed down judgment in an application for the confirmation of an order of constitutional invalidity granted by the High Court, Eastern Cape Division, Gqeberha (High Court). The Constitutional Court declared section 7(7)(c) of the Divorce Act 70 of 1979 inconsistent with the Constitution and, therefore, invalid.

The applicant, GD, brought this application in her personal capacity and on behalf of all spouses who are affected by the impugned provision. That provision excludes pension interest from redistribution during divorce proceedings if a marriage out of community of property and without accrual was concluded after 1 November 1984.

GD and her former husband GJD entered into a marriage out of community of property and without accrual in 2004. The marriage irretrievably broke down, leading to GD instituting divorce proceedings on 13 October 2020. GD alleges that, during the marriage, her main focus was managing the family and supporting GJD in his business and personal endeavours. In the divorce action, GD sought, amongst other things, a pension redistribution order in her favour, relying on the Constitutional Court’s judgment in KG. GJD defended the divorce action, arguing that he had not provided maintenance to GD during the marriage and that she did not have any claim to a redistribution of his assets.

GD argued that the impugned provision is unconstitutional on two grounds. First, because in KG the Constitutional Court held that the distinction between pre- and post-1984 marriages in relation to redistribution orders is arbitrary and irrational. Consequently, in terms of that judgment, there is in general no longer any distinction between pre- and post-1984 marriages. However, contrary to section 9(1) of the Constitution, in terms of the impugned provision, the distinction still exists with regard to pension interest. Second, the exclusion of pension interest from redistribution under the impugned provision unfairly discriminates on the basis of gender and sex, contrary to section 9(3) of the Constitution, for the same reasons that the Court invalidated section 7(3) of the Divorce Act in KG.

The High Court agreed with GD. It found that although a date of marriage is not a listed prohibited ground of discrimination under section 9(3) of the Constitution, the burden created by excluding post-1984 marriages in relation to pension redistribution falls more heavily on women than men. It, therefore, concluded that the impugned provision indirectly discriminates against women on the listed grounds of gender and sex. Relying on KG, it further held that withholding pension redistribution from one class of spouses, and particularly women in post-1984 marriages, is not fair discrimination.

The High Court also found that the respondents had not discharged the onus of justifying discrimination based on a listed ground in terms of section 36(1) of the Constitution. Furthermore, arbitrary differentiation can never be reasonable or proportional for justification purposes under section 36(1) and, by parity of reasoning, unfair discrimination cannot be justified. The High Court concluded that the whole of the impugned provision is invalid, as it serves no purpose beyond excluding spouses in post-1984 marriages from claiming redistribution of pension interest. It declined to suspend the declaration of invalidity in terms of section 172(1)(b)(ii) of the Constitution, holding that a “simple declaration of invalidity is sufficient”. Its order does not have retrospective effect.

In the Constitutional Court, GD repeats the irrational differentiation and unfair discrimination submissions made in the High Court. She stresses that the impugned provision creates an arbitrary distinction contrary to section 9(1) and discriminates against women on the basis of gender and sex contrary to section 9(3), neither of which can be justified under section 36(1) of the Constitution.

The Minister of Justice and Constitutional Development, who is cited due to her interest in the remedy the Constitutional Court might grant if it confirms the order of invalidity, agrees that the impugned provision has become vulnerable to a constitutional challenge based on irrational differentiation and discrimination subsequent to the Constitutional Court’s ruling in EB and KG. If the Constitutional Court confirms the declaration in this matter, the Minister of Justice requests a suspension of the order of invalidity for 24 to 36 months to allow Parliament to appropriately remedy the legislative defect in the impugned provision, along with interim relief providing that sub-section 7(7) applies without paragraph (c).

In its judgment the Constitutional Court notes that the suspension of the order of invalidity in EB and KG has been extended by 18 months to accommodate any delays that may occur. The suspension period will expire on 10 April 2027. The interim reading-in granted by the Constitutional Court in EB and KG remains operative. The extended suspension and interim order will therefore have a bearing on the content of the just and equitable remedy granted by the Court in this case.

On whether the order of constitutional invalidity should be confirmed, the Constitutional Court concluded that the High Court was correct in determining that the impugned provision is inconsistent with the Constitution and must be confirmed. It considered that unpaid domestic labour and domestic expenses are disproportionately borne by married women, to the benefit of their husbands who are more likely to devote more time to their career advancement and greater financial resources to their pensions. Such direct and indirect contributions to a couple’s assets may be competently examined by a court during divorce proceedings with a view to a just and equitable division of assets. Courts may, in pursuit of a just and equitable distribution of assets upon divorce, also consider the freedom of couples to choose their marital arrangements, as well as the disparities in bargaining power that often characterise these arrangements. In the post-KG scheme of the Divorce Act, the explicit exclusion of post-1984 marriages cannot be justified under section 36(1) of the Constitution, even if the distinction were rational, which it is not.

On remedy, the Constitutional Court concluded that the High Court’s declaration of invalidity should be confirmed with immediate effect. Were the Constitutional Court to grant the declaration of invalidity with immediate effect, pension interest would simply be dealt with as part of the assets subject to redistribution under section 7(3) and (8) of the Divorce Act. It would thus fall within the ambit of the suspension and interim remedy provided by the Constitutional Court in EB and KG. This would have no retrospective effect, and thus would not affect finalised divorce proceedings or wound-up matrimonial estates. This would ensure certainty and consistency in the overall legislative scheme regarding divorce proceedings, while vindicating the rights impacted by the impugned provision. .

The Full judgment  here