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| The short answer is: sometimes – but South African divorce law does not contain a general rule allowing a court to divide assets according to whatever percentage appears fair. The first question is not whether one spouse “deserves” more than 50%. It is: What matrimonial property regime applies, what has happened to the assets, and which legal remedy addresses that particular problem? |
This distinction is important because “50/50” is not the starting point in every South African marriage.
Where spouses are married in community of property, there is ordinarily a joint estate and equal division is the conventional starting point when that estate is divided.
Where spouses are married out of community of property with accrual, there is no joint estate to divide 50/50. Instead, an accrual calculation determines whether one spouse has a claim against the other.
Where spouses are married out of community of property without accrual, their estates are ordinarily separate, although a statutory redistribution remedy may apply in qualifying cases.
The answer therefore depends first on the matrimonial property system – and then on the particular remedy available within that system.
Not every divorce requires a court to determine how each asset must be divided.
Section 7(1) of the Divorce Act 70 of 1979 permits a court granting a divorce, in accordance with a written agreement between the spouses, to make an order dealing with the division of their assets or maintenance.
A settlement agreement is not, however, automatically incorporated into a divorce order merely because both spouses signed it. The court retains a supervisory role and must be satisfied that the agreement is one it may properly make an order of court.
J.V.N v S.S (2024/131418) [2025] ZAGPJHC 813 illustrates this distinction. Although the parties had signed a deed of settlement, the defendant later filed a notice of intention to defend and proposed different settlement terms. She was self-represented and living in London, which caused the Court to require further evidence and submissions before granting the divorce. The Court ultimately found that the original settlement agreement remained binding, that there was no indication that it had not been entered into freely and voluntarily, and that it could properly be incorporated into the decree of divorce. Source
The case therefore demonstrates both the usefulness and the limits of negotiated divorce settlements: spouses can agree on their patrimonial arrangements, but the court is not required simply to rubber-stamp whatever they place before it.
That must be distinguished from spouses attempting privately to change their matrimonial property regime while the marriage continues.
Section 21 of the Matrimonial Property Act 88 of 1984 establishes a court-supervised procedure for changing a matrimonial property system.
In A M v H M [2020] ZACC 9, the Constitutional Court considered a postnuptial agreement that departed from the parties’ antenuptial contract without the court supervision contemplated by section 21. The case confirms the importance of distinguishing an agreement regulating an impending divorce from an attempt to alter the matrimonial property regime during the marriage itself. Source
One of the best-known routes to an unequal result is forfeiture of patrimonial benefits under section 9 of the Divorce Act.
But forfeiture is frequently misunderstood.
It does not give a divorce court a general discretion to redistribute assets because an equal outcome appears unfair.
The leading authority is Wijker v Wijker (325/92) [1993] ZASCA 101. The enquiry concerns whether one spouse will receive a patrimonial benefit and, if so, whether that benefit would be undue having regard to the statutory factors. Source
Those factors are:
The factors are not cumulative.
In Botha v Botha (393/04) [2006] ZASCA 6, the Supreme Court of Appeal reinforced that the enquiry must remain within the factors identified by section 9. There is no additional catch-all power permitting the court simply to make whichever order appears generally fair. Source
That means misconduct does not automatically equal forfeiture.
Adultery, financial irresponsibility or the fact that one spouse contributed more money to the marriage does not, without more, establish entitlement to a larger share.
The court must apply the statutory test.
Forfeiture can also be partial. In M v M (022/2022) [2023] ZASCA 75, the Supreme Court of Appeal again considered partial forfeiture and restated the section 9 principles. Source
A more recent factual example is W.L v J.R (22524/2019) [2024] ZAWCHC 428, where forfeiture was granted on the particular evidence before the Western Cape High Court. It remains preferable, however, to use Wijker, Botha and M v M as the principal authorities for the legal test. Source
A completely different remedy exists where spouses are married in community of property and one spouse’s conduct is seriously threatening the other’s interest in the joint estate.
Section 20(1) of the Matrimonial Property Act allows a spouse to apply for an immediate division of the joint estate while the marriage still exists.
The applicant must satisfy the court that:
If those requirements are met, the court may order immediate division in equal shares or on another basis it considers just. Source
This is an exceptional protective remedy. It is not simply another way of asking for “more than half” during a difficult divorce.
Two direct section 20 cases demonstrate the threshold.
In Kruger v Kruger (6386/04) [2005] ZAGPHC 11, the applicant failed to establish the necessary serious prejudice. Source
In BTTM v NKM (054684/2024) [2024] ZAGPPHC 992, the court again dealt directly with section 20 and dismissed the application. The case illustrates the need for detailed evidence establishing the prejudice relied upon rather than broad allegations or apprehension. Source
Those cases give a more accurate picture of section 20 than attempting to attach Constitutional Court authority to the remedy where the Constitutional Court was not deciding a section 20 application.
Suppose one spouse withdraws or disposes of property belonging to the joint estate without the consent required by the Matrimonial Property Act.
That does not automatically make forfeiture the correct remedy.
Section 15 regulates transactions for which spousal consent is required. Section 15(9)(b) provides for an adjustment in favour of the other spouse when the joint estate is divided where its requirements are satisfied and the unauthorised transaction has caused a loss to the joint estate. Source
B.L.M v S.M.M (4516/2022) [2024] ZALMPPHC 68 is a strong modern example.
The case concerned a fixed deposit forming part of the joint estate. The court found that the fixed deposit had a value of R4,504,470.84 and that the plaintiff was entitled to relief under section 15(9)(b). The final order directed that an adjustment of R2,252,235.42 be effected in the plaintiff’s favour when the joint estate was divided. Source
The distinction between forfeiture and adjustment is not merely academic.
In P.P v P.P (067730/24) [2025] ZAGPPHC 900, the High Court expressly observed that the pleadings appeared to conflate section 9 forfeiture with section 15(9) adjustment. The case is a useful warning that a litigant must identify and plead the correct cause of action rather than relying on a broad appeal to fairness. Source
The Matrimonial Property Act contains additional mechanisms dealing with particular losses.
For example, section 17(3) deals with certain litigation costs incurred without required spousal consent.
Section 19 deals with liability arising from delicts committed by a spouse and provides for an adjustment where the joint estate has borne a liability that, under the statutory scheme, should ultimately be attributed to that spouse. Source
These provisions reinforce an important point:
| South African matrimonial property law does not deal with every disputed financial transaction through forfeiture. |
Sometimes the legislation provides a much more specific adjustment mechanism.
Where spouses are married out of community of property with accrual, there is no joint estate to divide in half.
The accrual system compares the growth of the spouses’ respective estates and may produce a claim by the spouse whose estate showed the smaller accrual.
The Matrimonial Property Act also contains its own protective remedy.
Under section 8, a spouse may seek immediate division of the accrual during the marriage where that spouse’s eventual right to share in the other spouse’s accrual is being, or will probably be, seriously prejudiced and other persons will not be prejudiced. Source
The right to share in accrual is itself a patrimonial benefit that can, under section 9 of the Matrimonial Property Act, be forfeited wholly or partly on divorce. Source
ST v CT (1224/16) [2018] ZASCA 73 is an important Supreme Court of Appeal authority in the accrual context. Among other matters, it deals with disclosure under section 7 of the Matrimonial Property Act and the burden resting on a spouse who contends that particular assets are excluded from the accrual calculation. Source
So even in an accrual marriage, asking whether someone will “get more than 50%” is usually the wrong starting question.
The proper exercise is an accrual calculation, followed by consideration of any legally recognised exclusion, forfeiture or protective remedy that may apply.
Another distinct remedy arises in certain marriages out of community of property without accrual.
Section 7(3) of the Divorce Act permits a court, where its requirements are met, to order the transfer of assets from one spouse to the other.
This is a redistribution remedy, not forfeiture.
The Constitutional Court’s judgment in EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others [2023] ZACC 32 changed the reach of this remedy significantly.
The Court declared unconstitutional the restriction that had confined the relevant section 7(3) redistribution remedy to particular marriages entered into before the commencement of the Matrimonial Property Act. Pending remedial legislation, the section is read without that temporal exclusion. Source
This means the date on which a qualifying no-accrual marriage was concluded is no longer, by itself, an absolute bar to a redistribution claim.
Parliament is considering permanent legislative amendments through the General (Family) Laws Amendment Bill [B20-2025]. The Bill expressly proposes allowing asset transfers on divorce for marriages out of community of property regardless of when the marriage was entered into. As at 18 August 2026, Parliament continues to list the Bill at the Introduction stage. It has therefore not yet been enacted. Source
There is no single “more than 50%” application.
The appropriate legal route depends on the reason the ordinary matrimonial-property outcome is disputed.
If the parties agree on a different division, the issue may be a settlement agreement.
If one spouse would otherwise receive an undue patrimonial benefit, the issue may be forfeiture.
If one spouse is seriously prejudicing a joint estate while the marriage still exists, section 20 may provide protection.
If assets were dissipated through transactions undertaken without required consent, a section 15(9)(b) adjustment may be the correct remedy.
If litigation costs or delictual liabilities have affected the estate, other statutory adjustments may apply.
If the marriage is subject to accrual, the correct enquiry is ordinarily an accrual calculation, potentially combined with section 8 protection or forfeiture of accrual benefits.
If the marriage is out of community without accrual, a qualifying case may involve section 7(3) redistribution.
The remedy must fit the legal problem.
Financial disputes in divorce often arise from the same factual complaints:
But those statements do not, by themselves, establish a legal entitlement to a larger percentage.
The same conduct may be relevant to several different remedies, but each remedy has its own requirements, evidential burden and consequences.
A forfeiture case can fail even though an adjustment claim might succeed.
A section 20 application can fail because serious prejudice has not been proved, even though remedies may still become available when the marriage is dissolved.
An accrual dispute requires a fundamentally different calculation from division of a joint estate.
And redistribution is a distinct statutory jurisdiction, not an extension of the forfeiture enquiry.
The strongest financial-divorce strategy therefore starts with three questions:
| What matrimonial property regime governs the marriage? |
| What exactly happened to the assets or liabilities? |
| Which statutory or common-law remedy responds to that event? |
Only then does it make sense to ask what the eventual financial division may be.
| This article provides general information about matrimonial property and the financial consequences of divorce in South Africa. It does not constitute legal advice. The outcome of a financial dispute on divorce depends on the matrimonial property regime, the pleadings, the evidence, the nature and value of the assets and liabilities, and the particular statutory remedy relied upon. Individual legal advice should be obtained before disposing of matrimonial assets, entering into a financial settlement, or pursuing forfeiture, redistribution, immediate division or a statutory adjustment. |
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