Getting Hitched? New Constitutional Court judgment on asset redistribution in divorces

In the Constitutional Court’s judgment in EB v ER and Others; KG v Minister of Home Affairs and Others [2023] ZACC 32, it was declared that section 7(3)(a) of the Divorce Act is inconsistent with the Constitution.

This means that parties who got married after the commencement of the Matrimonial Property Act, and out of community of property with the exclusion of the accrual system, may approach the court, which court will now have discretion to order redistribution of assets in an order to avoid injustice in such marriages.

Redistribution of assets refers to assets or a part of the asset of one spouse, is transferred to the other spouse, as the court deems fit, at divorce proceedings.

A spouse looking to approach a court based on the above does not have an automatic entitlement to have assets redistributed to them. It is required that the party that seeks to rely on such remedy, must prove their direct or indirect contributions made towards the estate of the other spouse to be successful.

The court, when hearing the matter, will consider whether the spouse relying on such remedy is entitled to a claim, and the extent that the spouse is entitled to a claim.

This judgment seeks protection for a spouse that has contributed to the estate in a direct or indirect way, which is a more equitable way for asset redistribution in a divorce.

What does this mean for you?

If you are considering getting married, or are already married, it is important to be aware of this change in the law. If you are married out of community of property without the accrual system, you should know that your spouse might be entitled to a redistribution of assets in the event of a divorce (taking into account the facts applicable to each case), even if they did not make any direct financial contributions to the estate.

If you are considering getting married, it is important to discuss the issue of asset redistribution with your partner and to seek legal advice. If you are already married and are concerned about the potential for asset redistribution in the event of a divorce, you should also seek legal advice.