The question of whether spouses who were not married in community of property with accrual can claim each other’s pensions after a divorce will soon be decided by the Constitutional Court.
This comes after the Eastern Cape High Court issued a historic decision on February 5 declaring Section 7(7)(c) of the Divorce Act unconstitutional.
The ruling calls into question the long-held notion that pensions in these kinds of marriages are shielded from divorce settlements.
A woman who the court purposefully identified as G.D., who was married under an antenuptial agreement that disregarded accrual and community property, filed the case.
When their marriage failed, she was unable to receive a portion of her ex-husband’s R1.5 million pension, even though she had spent years managing the home and raising the kids.
Women’s exclusion is irrational
The law, according to Acting Judge Olav Ronaasen, unfairly disadvantages spouses who gave up their careers to support their families, especially women.
He found the exclusion “irrational and contrary to Section 9(1) of the constitution”.
“The impugned section is irrational. How can it be a fair form of discrimination to withhold, from one class of spouses and in particular women in that class, a fair judicial remedy of which they may have as much need as other spouses?” Ronaasen asked in his ruling.
Expert evidence was emphasised in the ruling, which demonstrated that women generally earn less than men, perform more unpaid domestic work, and frequently do not have pensions of their own.
Many make indirect contributions to their partners’ future pension benefits and wealth, assuming they will receive a portion of them when they retire.
Currently pending confirmation from the Constitutional Court, the ruling essentially allows spouses in comparable marriages to request pension benefits during divorce proceedings.
Ruling to bridge legal loophole
The acting judge did clarify, though, that the ruling is not retroactive and will not impact divorces that were finalised prior to the ruling.
As required by law, the high court directed its registrar to forward the ruling to the Constitutional Court for confirmation.
If confirmed, the ruling will close a legal loophole that wealthier spouses have relied on to shield their retirement savings from divorce claims.
It will significantly alter South Africa’s divorce landscape, potentially exposing pensions to division in thousands of ongoing and future cases.
According to Statistics South Africa, 20 196 divorces were recorded in 2022, a 10.9% increase from the previous year.
Divorce rates remain highest among couples aged 39 (women) and 42 (men), with Gauteng, Western Cape, KwaZulu-Natal, and the Eastern Cape leading in numbers.
