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.
The case of EB (born S) v. ER (born B) and Others tested the fairness and the constitutionality of the application of section 7(3) of the Act as it seems to only cover marriages that were ended by divorce and not marriages that were ended by death. The Constitutional Court found the distinction created by section 7(3) of the Act amounted to an unfair discrimination as it only benefited couples whose marriages were dissolved by divorce and not couples whose marriages were dissolved by death.
To this end the constitutional Court proceeded to declare section 7(3) of the Act unconstitutional.
In the KG ruling, Mrs. G had launched an application declaring section 7(3) of the Act unconstitutional because she found herself ineligible and disqualified for distribution of her husband assets because she was married out of community of property with the exclusion of the accrual system after 1 November 1984 as explained above. The Constitution Court agreed with Mrs G’s contention, in that the exclusion of spouses married after 1 November 1984 amounted to indirect gender discrimination. In basic terms, a claim may now be brought by a spouse in accordance with Section 7(3) of the Act, regardless of the date of the marriage. The KG ruling gives equality before the law for spouses married out of community of property, without the accrual.
Following the Constitutional Court judgement in the two cases, the court can now order a transfer and/ or a redistribution of assets or a part of the assets from the financially stronger spouse to the financially weaker spouse regardless of whether the marriage ended in divorce or death and regardless of the date of marriage of the parties.
For the court to accept a claim under Section 7(3) of the Act, the spouse making the claim must show that he or she directly or indirectly contributed to the maintenance or increase of the estate of the other spouse during the marriage. For example, by rendering services to the spouse, did things during the course of the marriage to save the cost of living, or other activities that maintained or grew their spouse’s estate throughout the marriage.