Case name: EB (Born S) v ER (Born B) N.O. v and Others v KG v Minister of Home Affairs and Others 

Citation: [2023] ZACC 32

Court: Constitutional Court of South Africa 

Date of judgment: 10 October 2023 

Introduction to the Matter

The Matrimonial Property Act was enacted on 1 November 1984 and established the accrual system. Accrual entitles spouses to share in the growth of their separate estates upon dissolution of the marriage. 

Accrual is the default system for marriages out of the community of property entered into after 1 November 1984 unless it is expressly excluded by the parties in their antenuptial contract. 

The Matrimonial Property Act also created a remedy called a “redistribution order” for marriages entered into before 1 November 1984. 

This remedy was included in section 7(3) of the Divorce Act and allows a spouse in a divorce matter to apply to court for some of the other spouse’s assets to be transferred to them. 

It is available for spouses married in terms of an antenuptial contract that excludes community of property, community of profit and loss and accrual sharing. Before the EB decision, this remedy was limited in two ways. 

First, it only applied to marriages ending in divorce, not death. 

Second, it only applied to marriages entered into before 1 November 1984. 

The landmark case of EB challenged the constitutional validity of these two limitations. 

Overview of the Matter at Hand

This judgment dealt with two cases that challenged section 7(3) of the Divorce Act on different grounds. 

The case of Mrs B concerns the absence of a redistribution order where the marriage is terminated by death rather than divorce. 

The case of Mrs G concerns the absence of a redistribution remedy where the marriage is entered into on or after 1 November 1984.

Legal Issues Raised in the Case

The legal issue in this case centred around the constitutional validity of section 7(3) of the Divorce Act to the extent that it excludes the redistribution remedy to marriages dissolved by death and marriages entered into after 1 November 1984. 

Relevance to Divorce and Family Law

This case significantly changes the law around the redistribution of marital property and has far-reaching consequences for individuals in similar circumstances.  

Applicable Legislation

The Matrimonial Property Act, which governs matrimonial property regimes in South Africa.

The Divorce Act governs divorce in South Africa.

The Constitution, the highest law in South Africa, sets out the Bill of Rights. 

Summary of the Relevant Legislation

The Matrimonial Property Act

Section 2: Every marriage entered into after the commencement of the Matrimonial Property Act that excludes community of property and assembly of profit and loss is subject to the accrual system unless the antenuptial contract expressly excludes it. 

Section 3(1): Upon dissolution of such a marriage by divorce or death, the spouse whose estate shows no accrual or a smaller accrual than the estate of the other spouse or the estate of a deceased spouse acquires a claim against the other spouse or deceased estate.

The amount of this claim is equal to half of the difference between the accrual of the respective estates of the spouses.

The Divorce Act

Section 7(3) – A court granting a decree of divorce may, on application by one of the parties to that marriage, and, in the absence of any agreement between them regarding their assets, order that such assets or such part of the assets of the other party – as the court may deem just – be transferred to the first-mentioned party.

Section 7(4) – A redistribution order will not be granted unless the court is satisfied that it is equitable and just because the party in whose favour the order is granted contributed directly or indirectly to the maintenance or increase of estate of the other party during the subsistence of the marriage, either by the rendering of services or the saving of expenses which would otherwise be incurred, or in any different manner.

Section 7(5) – In making a redistribution order, the court will take the following factors into account:

• The existing means and obligations of the parties.

• Any donation made by one party to the other party during the subsistence of the marriage or which is owing and enforceable in terms of the antenuptial contract;

• Any court order which affects the patrimonial position of the parties; and

• Any other factor which should be considered in the court’s opinion. 

The Constitution 

Section 9(1) – Everyone is equal before the law and has the right of equal protection and benefit of the law.

Section 9(3) – The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

Explanation of How the Legislation Applies to the Case

Mrs B and Mrs G could not access the redistribution remedy due to the limiting provisions of the Matrimonial Property Act and the Divorce Act. 

The court had to decide the constitutional validity of these limitations concerning the equality provisions in the Constitution. 

Detailed Description of the Facts Leading up to the Case

Mrs B married her husband, Mr B, in 1983 in terms of an antenuptial contract. She instituted divorce proceedings against him in 2015 and claimed a redistribution order in terms of section 7(3) of the Divorce Act. 

Mr B died before the divorce order was granted. Mrs B wished to carry on with her claim for redistribution.

Mrs G married her husband, Mr G, in 1988. She instituted divorce proceedings against him in 2017, which are still pending. Mrs B wished to pursue a claim for redistribution under section 7(3) of the Divorce Act, stating that she contributed to her husband’s estate mainly in non-financial ways and that he is now very wealthy.

The High Court in each case, made an order of constitutional invalidity of section 7(3). The High Court orders came before the Constitutional Court for a confirmation of their invalidity.

Relationship Between the Parties Involved

Mrs B is the applicant in the first matter.

Mrs R, the first respondent in the second matter, is the daughter of Mrs B and co-executor of the late Mr B’s estate.

The Minister of Justice and Constitutional Development is the second respondent in the first matter.

Mrs G is the applicant in the second matter.

The Minister of Home Affairs is the first respondent in the second matter.

The Minister of Justice and Constitutional Development is the second respondent in the second matter.

Mr G is the third respondent in the second matter and the husband of Mrs G.

The Commission for Gender Equality and Gauteng Attorneys Association were admitted as amici curiae (friends of the court).

Issues to be Determined.

The court had to determine the constitutional validity of section 7(3) of the Divorce Act.

Primary Legal Questions Raised in the Case

The court had to determine the following legal questions:

• Whether the exclusions of a distribution remedy for marriages dissolved by divorce and marriages entered into after 1 November 1984 limit the right to equality and non-discrimination under section 9 of the Constitution.

• Whether such limitations are justifiable.

How the Issues Relate to Divorce and Family Law in South Africa

Determining these issues would result in a significant change in the law and affect many individuals in similar situations. 

Summary of the Arguments Made by the Parties

Mrs B argued that the law unjustifiably differentiates and discriminates against old antenuptial marriages dissolved by death based purely on the marriage date. 

She contended that this discrimination is based on marital status and impairs the fundamental dignity of spouses married before 1 November 1984.

In the first matter, the Minister of Justice and Constitutional Development argued that the Divorce Act deals with divorce matters and the applicant should have directed any constitutional attack on the Matrimonial Property Act. 

He submitted that there would be difficulties in adjudicating a redistribution claim against the estate of a deceased spouse who did not contractually commit to such an outcome and can no longer dispute the extent of the claimant’s contributions.

Mrs G argued that the exclusion of the redistribution remedy for individuals married after 1 November 1984 differentiates between these individuals and the following classes of spouses who have access to the remedy: 

• spouses in old antenuptial marriages, 

• spouses married under the Black Administration Act, spouses married under the Transkei Marriage Act, 

• customary marriages and Muslim marriages. 

She contended that this differentiation is irrational and constitutes discrimination based on sex, gender, marital status, culture, race and religion. 

Mrs B also advanced expert evidence that showed that women typically enter marriage poorer and more dependent than men and tend to have less bargaining power. 

The expert evidence further contended that the absence of a redistribution remedy for new antenuptial contract marriages fails to correct the exploitation of women’s care and domestic labour to the direct and structural advantage of men, who are generally favoured by antenuptial contract marriages.

The Minister of Justice and Constitutional Development did not oppose confirmation in the second case but submitted that the order of invalidity, if granted, be suspended because the South African Law Reform Commission is already reviewing the matrimonial property law and the possible extension of the redistribution remedy.

The Commission for Gender Equality cited various international law instruments that permit and oblige South Africa to allow a departure from unjust antenuptial contracts in all marriages. 

They argued that antenuptial contracts often involve unequal bargaining power, and enforcing them routinely can have severe consequences for a spouse.

The Gauteng Attorneys Association submitted that the redistribution remedy was introduced for a limited purpose – to alleviate the plight of women who never had the choice to marry according to the accrual system. 

The Association further argued that extending the redistribution remedy to new antenuptial contract marriages would be an unjustifiable arbitrary deprivation of property infringing on section 25(1) of the Constitution. 

Evaluation of the Arguments

After carefully considering all the arguments presented, the court was persuaded by the arguments in favour of extending the redistribution remedy. 

The Court agreed that the exclusions constituted unjustifiable discrimination against old antenuptial contract marriages dissolved by death and unjustifiable indirect discrimination against new antenuptial marriages. 

Discussion of the Relevant Law

The court referred to Harksen v Lane, which set out the framework for determining whether a provision of the law constitutes unfair discrimination. 

Stage 1 determines whether the provision differentiates between people or categories of people and whether the differentiation bears a rational connection to a legitimate government purpose. 

Stage 2 determines whether the differentiation amounts to unfair discrimination.

Court’s Decision and Order

The Court Made the Following Order In Mrs B’s Case:

• The High Court order of constitutional invalidity was confirmed.

• Section 7(3) was declared inconsistent with the Constitution and invalid because it fails to include dissolution by death.

• The declaration of invalidity is suspended for 24 months from the date of this order to enable Parliament to take steps to cure the constitutional defects identified in this judgment.

• Pending any remedial legislation, section 7(3) of the Divorce Act must include the redistribution remedy for marriages dissolved by death. 

• The order in paragraph 4 does not affect deceased estates that have already been finally wound up by the date of this order, and no claim as contemplated in paragraph 4 may be made by or against the executor of a deceased estate that has been finally wound up by the date of this order.  

The Court Made the Following Order In Mrs G’s Case:

• The High Court order of constitutional invalidity was confirmed.

• Paragraph (a) of section 7(3) of the Divorce Act was declared inconsistent with the Constitution and invalid because it fails to include marriages concluded on or after the commencement of the Matrimonial Property Act. 

• The declaration of invalidity is suspended for 24 months from the date of this order to enable Parliament to take steps to cure the constitutional defects identified in this judgment.

• Pending any remedial legislation, section 7(3) of the Divorce Act must be read to include the redistribution remedy for marriages entered into after the commencement of the Matrimonial Property Act. 

• The order in paragraph 4 does not apply retrospectively.

Explanation of the Reasoning Behind the Decision

The Court Gave the Following Reasons For Its Decision In Mrs B’s Case: 

• Spouses whose marriages terminate by divorce are treated differently from those whose marriages are terminated by death because the former class benefits from the redistribution remedy, whereas the latter class does not.

• The redistribution remedy was introduced to relieve the hardship that may be suffered by spouses whose marriages were not subject to the accrual regime and who would be left without recognition for their contributions to the increase of the other spouse’s estate.

• The underlying justification for introducing the remedy applies equally to marriages ending in divorce or death. 

The Court Gave the Following Reasons for Its Decision In Mrs G’s case:

• Women in old antenuptial contract marriages are treated differently from those in new ones.

• Although the differentiation is not on a listed ground, excluding new antenuptial contract marriages in section 7(3) falls more heavily on women while men disproportionately benefit. 

• The differentiation constitutes unjustifiable indirect discrimination on the grounds of gender. 

Implications for Divorce and Family Law

• This case extends the redistribution remedy to spouses married out of the community of property after 1 November 1984.

• The remedy is also extended to spouses married before 1 November 1984 whose marriages were terminated by death, provided that the deceased spouse’s estate has not been finally wound up. 

Lessons to be Learned from The Case for Potential Clients

• Potential clients are advised that while they can enter into an antenuptial contract, the courts will not always unilaterally enforce the agreement. 

This case demonstrated that the court may be sensitive to the emotional or cultural reasons why prospective spouses do not press for their commercial advantage in antenuptial contracts. 

Recommendations for Individuals Facing Similar Situations

Individuals facing similar situations are advised to consult divorce and family law specialists.

Judges

Rogers J, Zondo CJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Potterill AJ, Rogers J, Theron J and Van Zyl AJ

Legal Teams

Case CCT 364/21

For the Applicant: R du Plessis SC, D Gianni and C Strydom 

Instructed by Vogel Inc, Pretoria

For the Second Respondent: MPD Chabedi 

Instructed by the State Attorney, Pretoria

Case158/22

For the Applicant: W Trengove SC and S Scott

Instructed by Clarks Attorneys, Johannesburg

For the Second Respondent: M Mphaga SC, D Mtsweni and D Sekwakweng

Instructed by State Attorney, Pretoria   

For the First Amicus Curiae: M Bishop and A Christians

Instructed by Legal Resources Centre, Johannesburg

For the Second Amicus Curiae: LC Haupt SC, S Mentz, A Thompson and SM Stadler

Instructed by Adams & Adams, Pretoria