EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others[2023] ZACC 32
On 10 October 2023, the Constitutional Court delivered a groundbreaking judgment in two separate cases that both challenged the constitutionality of section 7(3) of the Divorce Act, 70 of 1979.
Section 7(3) of the Divorce Act provides that the court has a discretion when dissolving a marriage out of community of property which was concluded on or before 1 November 1984 (being the commencement date of the Matrimonial Property Act, 88 of 1984) to transfer assets from a financially stronger spouse to a financially weaker spouse. This section was added to the Divorce Act to protect traditionally vulnerable women who entered into marriages out of community of property. These women often contributed to the growth of their husbands’ estates while their own assets remained stagnant due to the traditional gender roles they assumed during their marriages. The section enables these vulnerable women to receive a portion of their husbands’ assets accumulated during the marriage, as they are typically excluded from sharing these assets in the event of a divorce because of their out of community of property marriage.
The one matter concerned the Divorce Act’s applicability only to marriages ending in divorce, excluding those dissolved by death. It was argued that this is unfair discrimination, particularly against spouses married before November 1, 1984, who were not covered by the accrual system. The Constitutional Court confirmed that this differentiation is unjustifiable.
In the other matter, a female spouse was ineligible for a redistribution order under section 7(3) of the Divorce Act due to her marriage date being after 1 November 1984. The Constitutional Court found that the differentiation between individuals who entered into a marriage with a prenuptial marriage contract before and after the commencement of the Matrimonial Property Act constitutes unjustifiable and indirect discrimination on the grounds of gender.
In both cases, the Constitutional Court confirmed the High Court’s rulings of constitutional invalidity, and provided a 24-month window for Parliament to address these issues and enact remedial legislation, and that during this period, the Matrimonial Property Act is to be read as including provisions that align with the Constitutional Court judgment.
The Constitutional Court judgment has significant implications for marriages concluded out of community of property with the exclusion of the accrual system that were concluded after 1 November 1984. Before, spouses in such marriages were not entitled to any form of asset redistribution upon divorce. The Constitutional Court found that this is indirectly discriminatory, particularly against women, and therefore unconstitutional.
Effectively, individuals married out of community of property without the application of the accrual system, are now entitled to claim a redistribution of assets despite the content of their antenuptial contract.
Importantly, however, the Constitutional Court judgment confirmed that a party is not automatically entitled to such a redistribution claim. A spouse instituting a claim under section 7(3) still needs to prove their direct or indirect contribution, made towards the estate of the financially stronger spouse, to be successful. In divorce proceedings, the court hearing that matter will then have to decide not only whether such a spouse is entitled to a claim, but also to what extent. A claim under Section 7(3) can only be granted if the Court deems it just and equitable and having regard to the claimant’s contribution and other relevant factors of that specific case.
It was noted in the Constitutional Court judgment that other countries, for example England and Canada, have also adopted this approach. The precedent setting case in England, in which the fundamental test for considering such a matter was set, was quoted as follows: “The Court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.
The Constitutional Court’s judgment does not apply retroactively to marriages that have already been dissolved by divorce or death and have had their financial matters finalised. This decision is forward-looking, and only affects future cases and ongoing cases that are yet to be finalised.
This judgment marks a significant shift for all marriages that are “out of community of property” after November 1, 1984. It not only challenges established legal norms but also establishes a groundbreaking precedent that introduces a fairer and more equitable framework for redistributing assets upon the dissolution of a marriage. This shift in the interpretation of the Divorce Act also sets a new standard for how marriage contracts should be drafted and negotiated in South Africa.
The full Constitutional Court judgment can be found here.
