BENITA ARDENBAUM Family Law Attorney
Landmark judgment extends asset redistribution rights to more South African marriages.
A recent Constitutional Court decision is set to transform how asset division is handled in South African divorces, especially for couples married out of community of property without accrual. The ruling corrects a long-standing legal inequality that left many spouses – often women – without fair access to marital wealth they helped build.
Until now, Section 7(3) of the Divorce Act allowed for asset redistribution only in marriages concluded before the Matrimonial Property Act (MPA) of 1984 – and only if the marriage ended in divorce, not death. This limited application has been declared unconstitutional by the Court in the consolidated cases of EB v ER & Others and KG v Minister of Home Affairs & Others.
The Court found that this legal distinction – based solely on the date of marriage and how it ends – was irrational and discriminatory.
Many spouses, it argued, signed antenuptial contracts (ANCs) excluding accrual without fully understanding the long-term financial consequences. Others were pressured into such contracts or had little bargaining power at the time.
The accrual system, introduced with the MPA in 1984, is a default inclusion in antenuptial contracts unless explicitly excluded. It ensures that, at the end of a marriage, spouses share in the growth of each other’s estates. But where accrual was excluded, spouses had no automatic claim on assets acquired during the marriage, regardless of their contributions.
Section 7(3) was introduced to offer a remedy: it gave courts the discretion to order a redistribution of assets in marriages without accrual, but only if the couple had married before 1984. This excluded a significant group – those married after the cut-off date, and those whose marriages ended through death rather than divorce.
The Constitutional Court has now expanded the scope of this provision. The judgment means that spouses in ANC marriages without accrual – regardless of when they married – may now approach the courts for a redistribution of assets, provided they can show that they contributed (directly or indirectly) to the growth of their partner’s estate.
This ruling is expected to have a major impact. Courts are already seeing more applications from spouses seeking a fairer division of assets under the newly clarified provisions.
The Court also clarified that dissolution by death should not disqualify a spouse from seeking relief. Excluding such spouses served no legitimate government purpose and unfairly disadvantaged many long-term partners, especially in traditional gendered roles where one spouse sacrificed financial gain to support the other’s career or raise a family.
The pending Family Law Amendment Bill (2025) aims to formally amend the Divorce Act to reflect the Court’s findings. Legal commentators suggest the ruling could shift how couples approach marriage contracts altogether. With redistribution rights now potentially available even in ANC marriages without accrual, the days of rigid legal distinctions based on outdated marriage regimes may finally be behind us.
For many, this marks a long and overdue step toward greater fairness in South African family court of law.
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