The Constitutional Court hears arguments on the constitutionality of the Divorce Act's pension provisions.
The Constitutional Court on Tuesday heard arguments in an application to have a section of the Divorce Act declared unconstitutional, which prevents spouses married out-of-community of property (without accrual) from claiming a share of each other’s pension interests at divorce.
In February last year, the Gqeberha High Court declared that Section 7(7)(c) of the Divorce Act is unconstitutional and invalid. It is argued that the fundamental problem with the section is that it excludes pension interests from the redistribution remedy that is now available in respect of all marriages concluded out of community of property and without accrual, regardless of the date of their conclusion.
Section 7(7)(a) of the Divorce Act allows for pension interests to be deemed part of a spouse’s assets when calculating patrimonial benefits.
However, Section 7(7)(c) creates an exception. It does not apply to couples married out of community of property without the accrual system after November 1984.
