For decades, many South Africans married out of community of property without the accrual system believed that, on divorce, each spouse simply walked away with what was in their own name. That is no longer the case.
A series of Constitutional Court judgments has transformed the position, the most recent being GD v Minister of Home Affairs and Others [2026] ZACC 39, handed down on 9 October 2026. This article explains what has changed and what it means for spouses who are divorcing, or who are planning their affairs.
The background: marriages without accrual
Spouses who sign an antenuptial contract (ANC) excluding both community of property and the accrual system each keep a separate estate. Historically, on divorce, there was no sharing at all, regardless of how long the marriage lasted or how much one spouse had contributed by raising children or supporting the other spouse’s career.
Section 7(3) of the Divorce Act 70 of 1979 allowed a court to make a redistribution order, transferring assets from one spouse to the other where just and equitable. But it only applied to marriages concluded before the Matrimonial Property Act came into force on 1 November 1984. Spouses married after that date were left without a remedy.
Step one: EB v ER (2023)
In EB v ER and Another; KG v Minister of Home Affairs and Others [2023] ZACC 32, the Constitutional Court held that limiting redistribution claims to pre-1984 marriages was unfair discrimination. The Court:
- declared section 7(3) unconstitutional to the extent of the date limitation;
- suspended the declaration of invalidity to give Parliament time to fix the law; and
- in the meantime, read the words out of the section, so that spouses married out of community without accrual after 1984 can claim redistribution.
The suspension has since been extended, and currently runs to 10 April 2027. The draft General (Family) Laws Amendment Bill, 2025 is intended to address the issue, but it has not yet been enacted.
Step two: GD v Minister of Home Affairs (2026)
Even after EB v ER, one obstacle remained. Section 7(7)(c) of the Divorce Act stated that the provisions treating a spouse’s pension interest as part of their assets did not apply to these marriages. In practice, a spouse whose main asset was a retirement fund could keep it entirely out of the redistribution calculation.
In GD, the Constitutional Court confirmed that section 7(7)(c) is unconstitutional. The Court found that:
- the distinction was irrational, because the pre- and post-1984 scheme that justified it had already fallen away; and
- it amounted to unfair gender discrimination, because evidence showed that women, who are more likely to have interrupted careers, tend to have significantly smaller pension savings.
Importantly, the Court refused to suspend the order. The change took effect immediately, on 9 October 2026.
What this means in practice
Pension interests can now be included. In a marriage out of community of property without accrual, a spouse claiming redistribution can ask the court to take the other spouse’s pension interest into account.
Redistribution is not automatic. The court still has a discretion. Under sections 7(4) and 7(5) of the Divorce Act, it must be satisfied that a redistribution order is just and equitable, because the claimant contributed directly or indirectly to the maintenance or increase of the other spouse’s estate. Contributions can include running the household and caring for children. The court also considers the existing means and obligations of the parties, any donation between them, and any other relevant factor.
The order applies going forward. The judgment does not reopen divorces that have already been finalised or estates that have been wound up. It applies to pending divorces and divorces started after the judgment.
Pension funds can implement the order. Once a divorce order deals properly with a pension interest, the fund pays the non-member spouse’s share under section 7(8). The order must be drafted precisely, naming the fund and the percentage or amount payable.
Who should take note?
- Spouses in pending divorces where the marriage is out of community without accrual. Claims and settlement positions may need to be reconsidered.
- Spouses who are about to divorce. The pension interest of the other spouse may now be a significant part of the claim.
- Spouses who are the main earners and pension holders. Exposure in a divorce may be larger than expected.
- Couples planning to marry. Excluding accrual in an ANC no longer guarantees that each spouse’s assets will be fully protected on divorce. Couples who want certainty should take advice on their ANC and on wider estate planning.
Other developments worth knowing
- Changing your property regime. In VVC v JRM and Others [2026] ZACC 2, the Constitutional Court confirmed that spouses who want to change their matrimonial property regime after marriage must follow the court process in section 21 of the Matrimonial Property Act. An ANC concluded after a customary marriage, without court approval, was invalid.
- Muslim marriages. The Divorce Amendment Act 1 of 2024 extended the Divorce Act’s protections to Muslim marriages, following Women’s Legal Centre Trust v President (2022).
- The Marriage Bill. Parliament is still considering a single Marriage Bill that would bring civil, customary, religious and other marriages under one law and raise the minimum age of marriage. It has not yet been passed.
What should you do now?
- Check your ANC. Know which property regime applies to your marriage.
- Get pension and asset information early. Benefit statements and fund details will be needed.
- Review pending settlement proposals in light of the new position.
- Take advice before signing a settlement agreement. Once a divorce is finalised, it is generally too late.
How O’Reilly Law can help
We advise spouses on redistribution and accrual claims, pension division, antenuptial contracts and changes to matrimonial property regimes. Whether you are claiming or defending a redistribution claim, we can help you understand your position under the new law. Contact us to discuss your situation in confidence.
Related reading: Getting divorced in South Africa · Rule 43 applications
This article is general information and not legal advice. The law in this area is developing quickly, and the General (Family) Laws Amendment Bill may change the position. Correct as at October 2026.