You are currently viewing Constitutional Court Judgment: Redistribution of Assets in Divorce Proceedings

Constitutional Court Judgment: Redistribution of Assets in Divorce Proceedings

Family and Divorce Law attorneys deal with a lot of cases wherein the woman gets an unfair deal simply because she married out of community of property, without the accrual. Many women who are stay-at-home mothers or homemakers get stuck in unhappy or abusive marriages simply because they know that if they walk away they will do so with nothing, therefore their hands are tied.

The Constitutional Court delivered groundbreaking judgments in two separate but interconnected cases on the 10th of October 2023, both of these cases challenged the constitutionality of Section 7(3) of the Divorce Act of 1979.

The most common marital regime in South Africa is “in community of property”, this is where both spouses share joint ownership of their assets and divide the marital property equally in the case of divorce. However, South African law also makes provision for “out of community of property” marriages, with or without accrual.

There are two types of antenuptial contracts: one which has complete asset separation, and the other keeps assets and liabilities prior to the marriage separate but it allows growth or accrual during the marriage to be shared equally. The matrimonial regime that the couple chooses will dictate whether the marriage is “with accrual” or “without accrual.”

“With accrual” marriages provide that everything that has been acquired after the marriage is part of the joint estate and is divided equally upon divorce, this prevents wealth disparity when one spouse accumulates assets while the other cares for the family. In terms of the Matrimonial Property Act, some assets can be excluded from the accrual for example, in cases where dividing an asset may be financially challenging or where other arrangements, such as a family trust, may prohibit the sale of the property.

“Without accrual” marriages provide complete asset separation, wherein all property acquired during the marriage belongs to the person who acquired it. Read more about antenuptial contracts here.

Section 7 (3) of the Divorce Act 70 of 1979

Section 7(3) was introduced into the Divorce Act 70 of 1979 to provide judges in divorce cases the discretion to distribute the assets of the spouses in marriages out of community of property which had been concluded before 1 November 1984, when the accrual regime did not exist.

Section 7(3) of the Divorce Act provides that if spouses married out of community of property get divorced, the divorce court can make an equitable order that assets of the one spouse be transferred to the other (redistribution order). This remedy is only available where the marriage was entered into before 1 November 1984.

EB (born S) v ER (born B) and Others

This matter was initiated by Mrs. B who in March 2015 instituted divorce proceedings against her late husband. Mrs. B claimed a redistribution order in terms of Section 7(3) of the Divorce Act. Mr. B died in 2016, and the divorce action pleadings had closed. Mrs. B wanted to proceed with her claim for a redistribution order, however, she was advised that a redistribution order was no longer possible due to the fact that the marriage had been dissolved by death and only a court granting a decree of divorce can make a redistribution order.

This led to certain, critical, questions being asked about the Divorce Act’s applicability only to marriages ending in divorce, excluding those dissolved by death. It was argued that this was unfair discrimination, particularly against spouses married before November 1, 1984, who were not covered by the accrual system.

Mrs. B’s argument was confirmed in the High Court’s decision in which it declared the section unconstitutional and they referred the matter to the Constitutional Court for confirmation. In the Constitutional Court, the court focused on the unfair differentiation between marriages dissolved by death before and after 1 November 1984.

The Court found the differentiation unjustifiable and upheld the High Court’s decision thereby declaring Section 7(3) of the Divorce Act 70 of 1979 inconsistent with the Constitution and invalid to the extent that it does not include the dissolution of marriage by death. Furthermore, the Constitutional Court also found that the declaration of invalidity will be suspended for a period of 24 months to allow Parliament to take steps to correct the constitutional defects identified in this judgment.

KG v Minister of Home Affairs and Others

The second case was brought forth by Mrs. G who married her husband, Mr G, in March 1988. Mrs. G began divorce proceedings (which is still pending) against her husband in 2017 and she wanted to pursue a claim in terms of Section 7(3) of the Divorce Act 70 of 1979, however, she was ineligible for a redistribution order under Section 7(3) of the Divorce Act because her marriage date was after 1 November 1984.

Mrs. G argued that her husband is currently a very wealthy man and in various ways, she has contributed to the increase of his estate. This led to Mrs.G launching an application in the High Court for an order declaring Section 7(3)(a) of the Divorce Act unconstitutional for limiting the redistribution remedy to marriages out of community of property which had been concluded before 1 November 1984.

The High Court found that this limitation is rationally connected to a legitimate government purpose, however, it is discriminatory and unfair. The High Court declared Section Section 7(3)(a) of the Divorce Act 70 of 1979 inconsistent with the Constitution to the extent that it limits the operation of Section 7(3) to marriages out of community of property entered into before 1 November 1984. Mrs. G then applied to the Constitutional Court for confirmation.

The Constitutional Court found that even though the differentiation based on the marriage date can be seen as rational it constitutes indirect gender discrimination. It, therefore, declared Section 7(3)(a) inconsistent with the Constitution and invalid to the extent that it fails to include marriages concluded on or after 1 November 1984. Furthermore, the Constitutional Court also found that the declaration of invalidity will be suspended for a period of 24 months to allow Parliament to take steps to correct the constitutional defects identified in this judgment.

Implications of these Constitutional Judgment

It opened the door for asset redistribution upon divorce for marriages out of community of property which had been concluded after 1 November 1984. This means that a spouse who contributed to the increase of the other spouse’s estate may now have a claim for a share of those assets. Previously, spouses in these marriages were not entitled to asset redistribution upon divorce.

The Constitutional Court’s judgment marks a significant milestone in our pursuit of fairness and equality in divorce proceedings. This decision brings South African family law closer to constitutional and international standards, emphasizing the principles of fairness, gender equality, and human dignity.

Contact Us

Entering into a marriage or considering divorce proceedings is a significant decision, and understanding the legal aspects thereof is vital. Our experienced attorneys have in-depth knowledge of family law in South Africa. Contact us today to schedule a consultation.

Leave a Reply