A glitch in the law?

The case EB (born S) v. ER (born B) and Others and KG v Minister of Home Affairs and Others [2023] ZACC 32 are key in the field of South African divorce law. In family law circles, it has significantly changed the conversation.

An overview

The question that was raised related to the  Divorce Act 70 of 1979, and specifically the redistribution remedy provided for in Section 7 (3) of the Act. The question that arose was whether certain exclusions of the Act were unconstitutional.

As a result, the difference in the Act between spouses married before 1 November 1984 and spouses married after said date, was unconstitutional.

What is a Section 7 (3) Claim?

A claim for the redistribution of assets between spouses who are not married in community of property and refrained from using the accrual system; can be brought under section 7(3).  Stated differently, it permits one spouse to demand the transfer of assets owned by the other spouse, to themselves.

For a Court to approve a claim under Section 7(3), it must be convinced that the claimant made a direct or indirect contribution through services rendered, cost savings, or in any other way to their spouse's growth throughout the marriage.

When adjudicating apart from the contribution obligation / criteria stated in the previous section, the Court needs to consider multiple factors:

• the parties' current financial situation and obligations;

• any gifts given to each other during the marriage or as required by the terms of the antenuptial agreement;

• any orders made regarding the patrimonial benefits under the laws of another state;

• any other considerations the court deems appropriate.

As seen above, a redistribution claim under Section 7(3) is therefore not something that can be made lightly. Rather, it is a demanding claim that must be supported by evidence, and before the Court will issue such an order, it must be convinced that granting the relief is fair and just.

However, there was a notable change following the KG ruling. The legislation was amended to remove the restrictive phrase "before the commencement of the Matrimonial Property Act, 1984."  This may have serious implications due to the significant modification.  Anybody who signed an antenuptial agreement after 1 November 1984, but excluded the accrual system, is potentially eligible to pursue a redistribution claim under Section 7(3). The Divorce Act of 1979, Section 7(3), now grants these individuals the ability to file such a claim against their spouse. Regardless of the date of such marriage, the KG ruling appears to guarantee equality before the law for spouses married out of community of property, excluding the accrual.

Thankfully, as it appears to be in this instance legal action through the courts may occasionally provide an additional opportunity for the legislation in South Africa to be made adaptable to the demands of its citizens, and to help balance their interests in a fair and reasonable manner.

Written by: Gaby Turner
Moderated and approved by: Clive Smith

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