The country’s marriage law was changed significantly by the Constitutional Court on 10 October 2023, in the case of EB v ER. In essence, it makes it fairer to people who are married “out of community of property” when their marriages end.
Before 1 November 1984, there were only two matrimonial property regimes applicable to marriages in South Africa. Spouses could get married either in community of property or out of community of property. Being married out of community of property simply means that the estates of spouses are kept separate and do not combine into a joint estate. Contrary to marriages out of community of property, being married in community of property meant that the estates of both spouses are combined.
On 1 November 1984, the Matrimonial Property Act 88 of 1984 entered into force introducing a third matrimonial property regime of marriages out of community of property with the inclusion of the accrual system. This means that the estates of spouses were still separate and didn’t combine into a joint estate, but the spouse with the smaller accrual or no accrual has a claim at the end of the marriage (through death or divorce) against the spouse with the bigger accrual for an amount equal to half of the difference between the accrual of the respective estates of the spouses. Recognition is given to the fact that spouses may contribute indirectly to the maintenance or growth of each other’s estates like the wife did through her unpaid labour in the home.
When the accrual regime was created, section 7(3) of the 1979 Divorce Act was amended to allow spouses who were married out of community of property before 1 November 1984 to apply for a redistribution order. In terms of a redistribution order, a court transfers the assets of one spouse to the other spouse if it is just and equitable to do so. In the matter of EB v ER the Constitutional Court found section 7(3) of the Divorce Act, among others, to be unconstitutional and invalid to the extent that it did not include spouses who were married out of community of property without accrual after 1 November 1984 or spouses who were married out of community of property without accrual before or after 1 November 1984. The bottom line of both these regimes is that parties could not claim a redistribution order if they contributed to the maintenance or growth of their spouse’s estate.
The significance of the Constitutional Court’s judgment in EB v ER is that spouses who are married out of community of property without accrual are now entitled to apply for a redistribution order regardless of when they were married or how the marriage ended. Especially spouses in Muslim marriages also benefit from this since Muslim marriages are regarded to be out of community of property without accrual.
A further important consequence of the judgment in EB v ER is how much it will potentially affect the calculation of estate duty which will also benefit the surviving spouse.
Our message to the stay-at-home moms (or dads as the case may be) – rest assured, your valuable contributions to taking care of the house and children while the other spouse continues working as the breadwinner of the family are now finally recognised by the South African law!
The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available in this article are for general informational purposes only. Readers of this article should contact us or any other attorney to obtain advice with respect to any particular legal matter. No reader, user, or browser of this article should act or refrain from acting on the basis of information on this article without first seeking legal advice. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed. The content on this posting is provided “as is;” no representations are made that the content is error-free.