OUT AND OUT WITH SECTION 7(7)(c) OF THE DIVORCE ACT: GD v MINISTER OF HOME AFFAIRS
Updated: 7 hours ago
This article provides a practical overview of a Court’s ability to order that one party’s assets be redistributed to another upon divorce in out and out marriages. It notes that the Constitutional Court’s judgment in GD v Minister of Home Affairs has allowed pension interests to form part of this redistribution.
So-called “out and out marriages” which are concluded out of community of property and without the application of the accrual system seem to ensure that one’s asset base is safe from the other party upon divorce. However, in October 2023, our Apex Court in EB (born S) v ER (born B); KG v Minister of Home Affairs[1] (“EB”) expanded the scope of section 7(3) of the Divorce Act[2] to allow redistribution of one spouse’s assets to the other upon dissolution of all out and out marriages by divorce. In October 2026, just one day shy of three years later, the Constitutional Court in the case of GD v Minister of Home Affairs and Others[3] (“GD”) eliminated a lingering issue that confined the practical effects of this judgment in confirming section 7(7)(c) of the Divorce Act’s constitutional invalidity. This now means that pension interests will be able to be redistributed from one spouse to another under the expanded remedy.
What is the new redistribution remedy?
As noted, section 7(3) of the Divorce Act currently allows for a Court to order a redistribution of assets in marriages concluded out of community of property without the inclusion of accrual. However, before the Constitutional Court handed down judgment in EB, this remedy only applied to out and out marriages concluded before 1 November 1984 or before the accrual system was available to parties entering into a marriage.
Why did we need a new redistribution remedy?
In EB, the differentiation present in section 7(3) was found to be unfair. The Constitutional Court found that limiting the applicability of this remedy indirectly discriminated between men and women. The previously limited scope of section 7(3) was found to have a disproportionate impact on women, as women in conventional, heterosexual marriages are more likely to contribute to their spouses’ estates through unpaid domestic labour.
What about my choice to enter into a valid antenuptial contract?
In this unanimous judgment, the Court noted that our law upholds contractual freedom while also recognising that the reality of marriage in South Africa has limited the voluntariness of choice of matrimonial property regime for many women. According to Rogers J, who handed down the judgment, the conclusion of an antenuptial contract is not an “ordinary commercial transaction”. Contractual freedom, as he found, must, as a result, be looked at through a context-sensitive lens that recognises the lived experience of South African women in traditional marriage roles. This is that of women who enable their husbands to grow their estates by way of the labour of child-caring, cooking, cleaning, event-planning, folding their husbands’ parachutes after they go skydiving[4] and myriad other unpaid activities that allow breadwinners to work more paid hours. The Court, in recognising the reality of the role that many women tend to take on in marriages, read-in the Divorce Act to allow for expansion of the section 7(3) redistribution remedy to apply to all out and out marriages.
Is out and out marriage meaningless? Will my assets automatically be split 50/50 upon divorce?
The expanded remedy does not automatically award redistribution of assets on dissolution of out and out marriages upon divorce. There is two-stage test used to award this remedy. Courts will assess (i) whether the claimant spouse has made a direct or indirect contribution to the estate of the other spouse that justifies the redistribution of assets[5] and (ii) if redistribution is justified, the extent of assets that should be redistributed. At the first stage, the Court will analyse whether it is just and equitable to order redistribution in the circumstances.[6] At the second stage, when Courts consider the percentage of assets to be redistributed, the factors enumerated in section 7(5) of the Divorce Act such as the means of the parties and gifts given during the marriage will be evaluated. This provision does not change the marital regime to one in community of property and it does not require that Courts award half of one spouse’s assets to the other spouse. As the Pretoria High Court noted in HCC v CC[AP1] ,[7] the purpose of this provision is to “equitably address the plight of stay-at-home spouses after divorce and to prevent gender inequality”. This remedy will not apply to all out and out marriages that end by divorce. Ithas a very specific purpose and aims to provide relief to those who require this remedy.
What is Section 7(7)(c) of the Divorce Act?
Section 7(7)(a) of the Divorce Act allows a Court to consider the pension interest of a party to form part of his/her assets in making divorce orders. However, before the Constitutional Court judgment of GD, section 7(7)(c) limited this provision. It stated that pension interests could not be deemed to form part of a spouse’s assets when the Court awarded redistribution in out and out marriages concluded after 1 November 1984. This meant that though section 7(3) allowed for redistribution orders to be made in all out and out marriages, pension interests could not be redistributed in out and out marriages concluded after 1 November 1984.
Why did the Court declare section 7(7)(c) unconstitutional?
The Court in GD relied heavily on EB and considered section 7(7)(c)’s constitutional invalidity to be a natural consequence of this judgment. The Court noted that there was particular potential for inequality based on gender to be indirectly perpetuated by this section. Dambuza J, in her unanimous judgment, made extensive reference to academic studies and reports. The evidence relied upon showed that pension interests, as defined by the Divorce Act, are particularly prone to exhibiting gendered inequality for two reasons. Firstly, as the Court noted, money that women in traditional marital roles do earn is more likely to be spent on expenses for the home. Men, as a result, have greater ability to save their earnings and deposit this into retirement savings accounts. Secondly, the Court noted that there is real statistical inequality between the retirement savings of women and men. Women, on average, retire with a mere 71% of the savings that men do. In addition, a South African woman’s retirement income is only 74% of a man’s.
Given the above, the Court found that, like the previous limitation of the redistribution remedy, the provision unfairly discriminated against women. The Court also found that, following EB, our law no longer provides a legitimate basis to differentiate between out and out marriages concluded before 1 November 1984 and those concluded thereafter. The Court, as a result, also concluded that the differentiation enabled by section 7(7)(c) is arbitrary.
What did the Court do to this provision?
This provision on its own caused the differentiation between out and out marriages concluded before 1 November 1984 and after 1 November 1984 for the purposes of section 7(7). It was, as a result, declared constitutionally invalid with immediate effect. Following this judgment, the Divorce Act is to be read as if section 7(7)(c) does not exist.
Will half my pension interests automatically be given to my spouse if we get divorced?
GD only allows for pension interests to be split in instances where a section 7(3) asset redistribution is required as laid out above. It will be considered as part of one’s assets when redistribution is ordered.
Why not just reform the law?
Though GD is a welcome case and makes the expanded redistribution remedy more meaningful, litigating the misalignment of section 7(7)(c) with our current law would have been avoidable if section 7 was reformed as a whole. The General (Family) Laws Amendment Bill of 2025[8] is currently tabled before parliament. One of its stated aims is “to provide for the transfer of assets by a court granting a decree of divorce in respect of a marriage out of community of property, regardless of when it was entered into”. This proposed reform will remove distinctions drawn in the Divorce Act between out and out marriages entered into before and after 1 November 1984 and will align the Act with the Constitutional Court’s jurisprudence.
By Adiya Pillay
(Candidate Attorney)
15 October 2026
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[1] 2024 (2) SA 1 (CC) https://www.saflii.org/za/cases/ZACC/2023/32.html
[3] (CCT 60/25) [2026] ZACC 39 https://www.saflii.org/za/cases/ZACC/2026/39.html
[4] E.L.M v L.M (9360/2022P) [2025] ZAKZPHC 127 (5 December 2025) https://www.saflii.org/za/cases/ZAKZPHC/2025/127.html
[5] See s 7(4) of the Divorce Act
[6] See s 7(4) of the Divorce Act
[7] H.C.C v C.C 2025 (1) SA 426 (GP) https://www.saflii.org/za/cases/ZAGPPHC/2024/758.html
