By Palesa Mollen Mashimbye

Prior to the Constitutional Couty Cases of [KG v Minister of Home Affairs and Others as well as EB (born S) v. ER (born B) and Others [2023] ZACC 32] Section 7(3) of the Divorce Act 70 of 1979 (the Act) provided for a claim for redistribution of assets between partied who were married out of community of property without the accrual system prior to 1 November 1984.

Thus, the parties had to have been married out of community of property with the exclusion of the accrual system. And the marriage must have been concluded before 1 November 1984.

This meant that the redistribution of assets was not possible for couples married out of community of property without accrual after 1 November 1984. Put differently, the law allowed a qualifying married couple to demand the transfer of assets from one spouse to the other.

The question that the Constitutional Court had to decide in these two cases was whether certain exclusions in section 7(3) were unconstitutional.

By Jehoshaphat John Njau

The decision of whether or not to grant an order of forfeiture of patrimonial benefits in divorce actions remains one of the most contentious subjects in the South African family law landscape. In South Africa the award of forfeiture is governed by Section 9 of the Divorce Act 70 of 1979 (the Act).

What is an order / award of forfeiture?

The order of forfeiture of patrimonial benefits entails an order that one party forfeits and loses the assets which he or she would have been entitled as a result of the marriage in community of property or benefits accrued as a result of an antenuptial contract incorporating accrual.

The premise behind a party seeking an order of forfeiture is based on the notion that, if the order is not granted, one party (the guilty party) will be “unduly benefited” to the disadvantage of the other party (the innocent party).

By: Lerato Mokoena                            22 February 2022                      

The issue of divorce is commonly feared due to the possibility of loss of financial support, previously provided by a spouse during a marriage.

In a marriage relationship (customary marriages included), there is a reciprocal duty of support between spouses. The spouse who claims maintenance must be in need of the maintenance and the spouse from whom maintenance is claimed must be able to provide the maintenance among other criteria as set provided for in the case of Langemaat v Minister of Safety and Security. Customary marriages carry the same legal consequences as a civil marriage including the reciprocal duty of support and maintain.

By: Jehoshaphat John Njau                                                            17 February 2022

 We glad you asked. In terms of the Recognition of Customary Marriages Act 120 of 1998, spouses married in terms of customary law without concluding a prenup (antenuptial contract) are automatically and by default married in community of property.

According to the Matrimonial Property Act 88 of 1984 (MPA) parties who wish to get married out of community of property both in civil marriage and customary marriage must enter into an antenuptial contract before the marriage ceremony is concluded.