When Fairness Prevails: How the Constitutional Court Expanded Redistribution Rights

Introduction

The Constitutional Court’s decision in EB (Born S) v ER (Born B) N.O. and Others; KG v Minister of Home Affairs and Others significantly changed the law relating to section 7(3) of the Divorce Act 70 of 1979. The judgment expanded the circumstances in which courts may order a redistribution of assets between spouses and removed certain limitations that had unfairly disadvantaged many spouses, particularly those who had made substantial contributions to a marriage without acquiring ownership rights in the other spouse’s estate.

The Purpose of Section 7(3)

Section 7(3) of the Divorce Act was created to protect spouses who were married before 1 November 1984 and out of community of property, as the accrual system had not formed part of our law prior to that date. In many marriages, one spouse would accumulate most of the assets while the other contributed indirectly through childcare, homemaking, supporting a family business, or helping the other spouse build wealth. The purpose of section 7(3) was to allow a court, upon divorce, to transfer assets from one spouse to the other where it would be fair to do so, taking into account the contributions made by the disadvantaged spouse during the marriage.

The Law Before the Constitutional Court Judgment

Before the Constitutional Court’s decision, section 7(3) only applied to spouses who were married out of community of property before 1 November 1984. This date was significant because the Matrimonial Property Act came into operation on that date and introduced the accrual system.

As a result, spouses who entered into out-of-community-of-property marriages without accrual after 1 November 1984 could not rely on section 7(3), even if they had made substantial contributions to the marriage and would otherwise have qualified for a redistribution order.

Furthermore, the redistribution remedy was only available where the marriage ended through divorce. The section failed to make provision for the division of the estate if the marriage came to an end because of the death of a spouse. If one spouse died before a divorce was finalised, the surviving spouse could not claim a redistribution order under section 7(3).

The Constitutional Challenge in KG v Minister of Home Affairs

In KG v Minister of Home Affairs, the applicant challenged the rule limiting section 7(3) to marriages concluded before 1 November 1984.

The Constitutional Court found that to make a distinction between marriages concluded before 1 November 1984 and marriages concluded after 1 November 1984 was unfair and irrational. The Court held that spouses married after 1984 could suffer exactly the same financial disadvantage as spouses married before 1984. The date of the marriage did not justify treating these groups differently, irrespective of the institution of the accrual system.

The Court therefore declared the provision unconstitutional because it excluded post-1984 marriages from the protection offered by section 7(3).

The Constitutional Challenge in EB (Born S) v ER (Born B) N.O. and Others

In EB (Born S) v ER (Born B) N.O. and Others, the Court considered a different problem. In that case, divorce proceedings had commenced, but one spouse died before the divorce was finalised.

As section 7(3) only applied once a divorce order had been granted, the surviving spouse lost the opportunity to seek a redistribution of assets in terms of the section. The Court found that this outcome undermined the purpose of the legislation.

As a result, the Constitutional Court held that there was no justifiable reason why a spouse should lose the protection of section 7(3) merely because the marriage ended through death rather than divorce. The Court therefore declared this limitation unconstitutional.

The Law After the Judgment

The judgment expanded the availability of redistribution orders by declaring the arbitrary and irrational limitations unconstitutional. These changes ensure that courts focus on the actual contributions made by the spouses during the marriage rather than on arbitrary factors such as the date of the marriage or the manner in which it ended. The judgment promotes substantive equality and fairness in matrimonial property law. It recognises that many spouses contribute significantly to the growth of a family estate without receiving legal ownership of the resulting assets.

By extending the protection of section 7(3), the Constitutional Court ensured that more spouses have access to a fair redistribution of assets where justice requires it. The decision particularly benefits spouses who sacrificed career opportunities, cared for children, managed households, or otherwise contributed indirectly to the accumulation of wealth during the marriage.

Conclusion

The Constitutional Court’s decision in EB and KG fundamentally changed the operation of section 7(3) of the Divorce Act. Prior to the judgment, redistribution orders were limited to certain pre-1984 marriages and were available only upon divorce. Following the judgment, redistribution relief can be sought in a much wider range of circumstances, including post-1984 marriages and cases where a marriage ends through death. The decision therefore represents an important step towards a fairer and more equitable matrimonial property regime in South Africa.