On 9 October 2026 the Constitutional Court changed who can claim a share of a spouse’s pension in divorce. Most coverage focuses on which marriages are affected. This guide takes a different route. In a divorce, your retirement fund is shaped by a small number of dates, and missing one can cost you far more than the legal argument. We walk through the five that matter, plus a rule most people discover too late: a pending divorce can freeze your two-pot savings withdrawal.
What You Will Learn
- What the October 2026 ruling changed, and what it did not
- Which marriage regimes allow a claim on a pension
- The five dates that decide who gets what
- Why your savings component withdrawal may be blocked
- What a divorce order must say before a fund will pay
- How the payout is taxed
The Ruling in Brief
In GD v Minister of Home Affairs, the Constitutional Court declared section 7(7)(c) of the Divorce Act invalid. That paragraph had kept pension interest out of the divorce asset pool for marriages out of community of property, without accrual, entered into on or after 1 November 1984. The order took effect immediately. It does not undo divorces that are already finalised.
Pension interest in these marriages can now be considered when a court decides how to redistribute assets. It is not an automatic half share. The court still weighs contribution and fairness. Funds are not expected to change how they pay, because they already carry out court orders under section 7(8) of the Divorce Act.
Which Marriage Are You In?
- In community of property: the pension interest is deemed part of the joint estate, and each spouse is generally entitled to half.
- Out of community with accrual: the spouse with the smaller accrual may claim half the difference, which can include pension interest.
- Out of community without accrual: no automatic right. Since the ruling, a court may include pension interest in a redistribution claim for marriages from 1 November 1984, subject to its discretion.
The Five Dates
1. The Date of Your Marriage and Its Regime
This decides which route applies. If you are unsure which regime you signed up to, check your antenuptial contract before anything else.
2. The Date the Divorce Action Starts
In marriages in community of property, a 2024 High Court decision (MM v OM, 2024 (3) SA 133 (GP)) held that the pension interest vests in the joint estate when the divorce action is instituted. The member had left the fund before the divorce was granted, yet it made no difference. Retiring or resigning during the proceedings does not remove the spouse’s claim.
3. The Date of the Court Order
This is the valuation date. For orders granted on or after 1 September 2024, Alexforbes says the pension interest is the member’s individual account or minimum individual reserve on the date of the order. For earlier orders, it was the benefit the member would have received on resigning on the divorce date. For retirement annuities, the rule used to be contributions plus simple interest, but it now follows the fund rules at the order date, according to Ninety One.
4. The Dates in the Fund’s Payment Window
Alexforbes sets out its timeline for orders it administers:
- Within 45 days of receiving the order, the fund asks the ex-spouse to choose between cash and a transfer.
- The ex-spouse has 120 days to choose.
- The fund transfers within 60 days of the election.
Other funds may use different timelines. The ex-spouse earns the fund’s return only from the deduction date, and Alexforbes says the Pension Funds Adjudicator has confirmed that no other growth or interest is due.
How rule 37 deals with beneficiaries after divorce
5. The Date You Retire
The pension interest rules apply to members of retirement funds. They do not simply carry over to an annuity you have already bought. Allan Gray noted in 2020 that pension interest deductions do not apply to living annuities, and that a court has treated future annuity income as part of the estate for accrual purposes without saying how to value it. That source is old, so a lawyer should confirm the current position before you rely on it.
Will Your Retirement Savings Last as Long as You Do?
Use our free retirement income and annuity calculator to find out. See how your investments could grow, test different retirement scenarios, and compare conservative and aggressive strategies. Discover how small changes today could make a big difference to your retirement income tomorrow.
The Frozen Savings Pot
This is the point that surprises members. Since the two-pot system began, you can withdraw from the savings component once a tax year. But Alexforbes and Ninety One both say that once a fund has proof that divorce proceedings are pending, it cannot process a savings withdrawal without the other spouse’s consent. If the order is final, Alexforbes says the fund must pay the divorce claim before any withdrawal is made.
The effect is practical. Cashing out your savings component before the order, in the hope of keeping it out of the settlement, will not work once the fund has been notified. Read our guide to the choices when leaving a retirement fund for how the pots work.
What the Order Must Say
A fund will pay only if the divorce order meets certain requirements. According to Alexforbes and Ninety One, the order must:
- use the term “pension interest”, not “fund value” or “policy proceeds”
- state a percentage or a rand amount
- name the fund correctly, and the policy number if the member holds several
- instruct the fund to pay or transfer
Alexforbes adds that an order specifying an after-tax amount is unenforceable against the fund, and that the award cannot exceed the member’s value on the divorce date. Fixing a defective order later needs a court amendment. Both sources suggest sending the draft wording to the fund before the court approves it.
Cash or Transfer, and the Tax
The ex-spouse must choose all cash or a full transfer. A split is not allowed. A cash payment is taxed in the ex-spouse’s hands under the lump sum tables. A transfer to an approved fund is tax-neutral at the time, and tax is paid when the money is eventually withdrawn. Older SARS guidance (General Note 33) allows the fund to recover the tax from the non-member spouse, so the order should say who bears it.
What the Ruling Does Not Do
- It does not give an automatic half share.
- It does not reopen finalised divorces.
- It does not settle how pending cases are treated, so ask a lawyer.
- It sits beside the interim redistribution rule for these marriages, which the Court extended to 10 April 2027. Whether the General (Family) Laws Amendment Bill makes it permanent is not yet clear.
Two Short Checklists
If you are the member:
- Get a statement of your fund values and component split.
- Do not rely on a quick savings withdrawal.
- Check how any settlement is worded before it is signed.
If you are the ex-spouse:
- Insist on the wording above.
- Decide early between cash and a transfer.
- Remember that the tax falls on you.
Key Takeaways
- Section 7(7)(c) was struck down on 9 October 2026, with immediate and prospective effect.
- Pension interest can now be part of a redistribution claim in more marriages, at the court’s discretion.
- Valuation, payment and growth all depend on specific dates.
- A pending divorce can block your savings component withdrawal.
- The order must use the right words, or the fund will refuse to pay.
Frequently Asked Questions
Does my ex-spouse get half of my pension in a divorce?
Not automatically. In a marriage in community of property the pension interest is generally split equally. In other regimes it depends on accrual or on a court’s redistribution order.
What did the Constitutional Court decide on 9 October 2026?
It declared section 7(7)(c) of the Divorce Act invalid, with immediate effect. Pension interest can now be considered in redistribution claims for marriages out of community of property, without accrual, entered into on or after 1 November 1984.
Can I withdraw my savings component while I am getting divorced?
Probably not without your spouse’s consent. Funds that receive proof of pending divorce proceedings are reported to refuse savings withdrawals until the order is granted.
How is pension interest taxed?
A cash payment is taxed in the receiving spouse’s hands under the lump sum tables. A transfer to an approved fund is tax-neutral until the money is withdrawn.
What happens if my divorce order does not meet the fund’s requirements?
The fund may refuse to pay, and a variation or amended order may be needed. Have a lawyer check the wording first.
This article was prepared with AI assistance for general information only. It is not legal, tax or financial advice. Divorce outcomes depend on your marital regime, your facts and the court’s discretion. Speak to an attorney and an authorised financial services provider before you act.
