087 822 1639
087 822 1639
What EB v ER and KG v Minister of Home Affairs changed in South African divorce law
A spouse married out of community of property without the accrual system after 1 November 1984 can now, in appropriate circumstances, claim a redistribution of the other spouse’s assets at divorce — a remedy previously available only to spouses married before that date.
The Constitutional Court established this in EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others (CCT 364/21; CCT 158/22) [2023] ZACC 32. That does not mean every spouse married without accrual is entitled to part of the other spouse’s estate.
Redistribution remains a discretionary remedy: the claimant must establish the statutory requirements, including a direct or indirect contribution to the maintenance or increase of the other spouse’s estate, and the court must decide what, if any, transfer would be just and equitable.
This article explains what the Constitutional Court changed, how redistribution differs from accrual, what must still be proved and what evidence may matter in practice.
This article provides general information about South African law. It does not constitute legal advice and does not predict the outcome of an individual matter.
| Question | General position |
Can a spouse married without accrual claim redistribution? | Potentially, yes. EB/KG removed the previous pre-1984 limitation from section 7(3)(a). |
Does that make redistribution automatic? | No. The claimant must satisfy sections 7(3), 7(4) and 7(5), and the court retains a discretion. |
Is redistribution the same as accrual? | No. Accrual is a contractual/statutory sharing system. Redistribution is a discretionary court remedy. |
Must the claimant prove financial contributions only? | No. Section 7(4) recognises direct and indirect contributions, including services and expenses saved. |
Can domestic and caregiving contributions count? | Potentially, yes, depending on the facts and their connection to the maintenance or increase of the other spouse’s estate. |
Can the court transfer half of the other spouse’s estate? | Not automatically. The court may order such transfer as it considers just after applying the statutory factors. |
Does EB allow courts simply to ignore ANCs? | No. The ANC remains important. EB addressed access to a statutory redistribution remedy; it did not create a general power to disregard matrimonial contracts. |
Can redistribution arise after death? | The Constitutional Court also addressed dissolution by death and created interim relief subject to important qualifications. |
Before the Constitutional Court’s decision, section 7(3)(a) drew a distinction based on when the marriage had been concluded.
The redistribution remedy was generally available in certain marriages out of community of property concluded before 1 November 1984, where community of property, community of profit and loss and accrual sharing had been excluded.
For spouses who entered similar no-accrual marriages after the Matrimonial Property Act came into force, the position was different.
The rationale was historically that spouses marrying after 1 November 1984 had the opportunity to choose the accrual system.
The Constitutional Court concluded that the statutory distinction denying qualifying post-1984 spouses access to redistribution was constitutionally invalid.
Its reasoning was not confined to a single proposition about gender discrimination: the Court considered the arbitrary effect of the date-based distinction, its discriminatory impact – including indirect gender discrimination – and the equality and dignity implications of the exclusion.
On 10 October 2023, the Court suspended its declaration of invalidity for 24 months while granting interim relief through severance of the offending words from section 7(3)(a), so the practical relief took effect immediately rather than only when the suspension period expired.
The KG part of the Constitutional Court proceedings concerned a spouse who married out of community of property without accrual in 1988.
She alleged that she had contributed, substantially and in many non-financial ways, to the increase of her husband’s estate during the marriage.
Because the marriage had been concluded after 1 November 1984, the wording of section 7(3)(a) appeared to exclude her from claiming redistribution.
The Constitutional Court declared that limitation unconstitutional.
It ordered that section 7(3)(a) be read without the words restricting the remedy to marriages entered into before the commencement of the Matrimonial Property Act.
Subsequent High Court decisions have applied that approach to post-1984 marriages out of community of property without accrual.
This distinction is critical.
Accrual. Where spouses marry out of community of property with accrual, the Matrimonial Property Act creates a structured sharing mechanism. Broadly, the growth of each spouse’s estate is calculated, subject to exclusions and other statutory rules, and the spouse with the smaller accrual may acquire a claim based on the difference. The right arises from the matrimonial property regime chosen by the parties.
Redistribution. Redistribution under section 7(3) is different. There is no automatic formula giving one spouse a fixed percentage of the other spouse’s estate. Instead, the court may order a transfer of assets only if the requirements in sections 7(3), 7(4) and 7(5) are satisfied. The remedy is therefore discretionary and contribution-based.
Section 7(4) is central.
A redistribution order should not be granted unless the court is satisfied that it would be equitable and just because the claimant contributed, directly or indirectly, to the maintenance or increase of the other spouse’s estate.
The contribution may take different forms. The statute expressly recognises contributions made by rendering services, by saving expenses that would otherwise have been incurred, or in another manner contributing to the maintenance or increase of the estate.
The analysis is therefore broader than simply asking who earned the money.
Potentially, yes.
A spouse may contribute economically to the other spouse’s estate without receiving a salary or directly investing money into a business.
Examples may include caring for children, managing the household, supporting the other spouse’s career or business, performing unpaid administrative work, saving childcare or household expenses, relocating for the other spouse’s career, maintaining family responsibilities that enabled the other spouse to work longer hours or build a business, or making direct financial contributions.
The question is not whether the contribution fits a particular label. The issue is whether the evidence establishes a direct or indirect contribution to the maintenance or increase of the other spouse’s estate.
In M.S v E.S (3091/2021) [2025] ZAMPMBHC 96 (23 September 2025), the court recognised that a spouse in a post-1984 no-accrual marriage could pursue a redistribution claim, and that a significant financial and non-financial contribution to the other spouse’s estate was relevant to the section 7(4) enquiry.
Once the threshold contribution requirement is established, section 7(5) guides the court’s discretion.
The court may consider matters including the assets and means of the parties, existing and future obligations, donations made by one spouse to the other during the marriage, any forfeiture order under section 9, and any other factor which, in the court’s opinion, should be taken into account.
The purpose is not to recreate the accrual system after the fact. The court must determine what transfer, if any, is just in the circumstances of the particular marriage.
No.
This is one of the most important distinctions between redistribution and accrual.
Under accrual, the legislation provides a structured calculation.
Under section 7(3), there is no rule that the poorer spouse receives half of the wealthier spouse’s estate, half of the difference between the estates, or a predetermined percentage based solely on how long the marriage lasted.
A claimant may ask for a particular percentage or asset transfer, but the court must exercise its discretion after considering the statutory requirements and evidence.
This is an important limitation.
The Constitutional Court did not hold that an ANC excluding accrual can simply be disregarded whenever a court considers the result unfair.
The ANC remains legally significant.
What the Court changed was the statutory bar preventing certain spouses from even seeking a redistribution remedy. That is different from saying that the underlying matrimonial contract has ceased to operate.
A redistribution claim must still be brought within the framework of section 7(3) and its related provisions.
The Court examined the different treatment of spouses based largely on the date of their marriage.
A spouse married without accrual on 31 October 1984 could potentially seek redistribution. A spouse in a materially similar marriage concluded shortly afterwards could not.
The Court found that this distinction implicated constitutional equality and dignity concerns.
The availability of accrual as an option after 1984 did not adequately justify a permanent exclusion from redistribution, particularly given the economic and social realities that may affect bargaining power and financial decision-making within marriages.
The EB matter dealt with a related but distinct problem.
Mrs B had married in terms of an ANC and instituted divorce proceedings some years later, claiming redistribution under section 7(3).
Before the divorce was finalised, her husband died.
The problem was that section 7(3), as traditionally framed, contemplated a redistribution order by a court granting a decree of divorce.
Mrs B therefore faced losing the redistribution remedy because the marriage had ended through death rather than divorce.
The Constitutional Court held that excluding redistribution solely because the marriage ended through death was also constitutionally defective.
It declared section 7(3) invalid to that extent and fashioned interim relief through a reading into the Matrimonial Property Act.
That relief contemplated a redistribution claim after death by the surviving spouse or, depending on the circumstances, by the executor of the deceased spouse’s estate.
There are important limitations. The Constitutional Court expressly provided that its order would not disturb acts performed in relation to a deceased estate that had already been finally wound up by the date of the order, and no qualifying claim could be brought by or against the executor of such an already-finalised estate.
The Constitutional Court suspended its declarations of invalidity for 24 months from 10 October 2023, expiring on 10 October 2025, to give Parliament the opportunity to enact a permanent legislative fix.
Parliament responded with the General (Family) Laws Amendment Bill (B20-2025), which proposes to extend redistribution relief to marriages out of community of property without accrual regardless of when they were concluded, and to formally provide for redistribution on dissolution by death.
As at the most recent information available, that Bill had not yet been enacted — it remains before Parliament. This matters less in practice than it might appear.
The Constitutional Court’s interim relief was framed as immediate and operative in its own right, not merely as a placeholder pending the 24-month deadline, and South African courts have continued to apply it in decisions handed down after that deadline passed, including a KwaZulu-Natal High Court judgment in December 2025.
A spouse should not assume the redistribution remedy has lapsed or become uncertain simply because Parliament’s own permanent legislation is still pending — but given how actively this area continues to develop, the current position should always be confirmed before a claim is finalised.
Because the death-related remedy also intersects with deceased-estate administration, specialist advice is particularly important before relying on it.
A strong redistribution claim normally requires evidence of both the claimant’s contribution and the development of the other spouse’s estate.
Depending on the case, useful evidence may include bank statements, tax records, business financial statements, company records, property records, employment history, proof of direct investments or payments, household expenditure, school and childcare arrangements, evidence of unpaid work in a family business, correspondence showing involvement in business or financial decisions, evidence of relocation or career sacrifice, pension and investment records, and schedules showing how each spouse’s estate developed during the marriage.
The claim should be evidence-driven. A long marriage or significant disparity in wealth, by itself, does not prove the statutory contribution required by section 7(4).
Consider a spouse who reduces employment or leaves the workforce to care for children while the other spouse builds a professional practice or company.
The caregiving spouse may not have directly acquired shares in the business.
But if that arrangement allowed the business-owner spouse to devote substantially more time and resources to developing the enterprise, it may form part of an indirect-contribution case.
The legal question remains whether the evidence demonstrates a contribution to the maintenance or increase of the other spouse’s estate.
A spouse may also have worked directly in the other spouse’s business.
Important questions may include whether the spouse was paid a market-related salary, whether they performed management or administrative work, whether they introduced clients, whether they provided capital, whether they guaranteed debts, whether they managed the household while the other spouse expanded the business, whether they assisted without remuneration, and whether they sacrificed their own career or earning opportunities.
These facts can become important in determining the nature and extent of the contribution.
The fact that one spouse leaves the marriage significantly wealthier than the other does not automatically justify redistribution.
There must still be a proper legal and evidential basis for the claim.
The Constitutional Court removed an unconstitutional barrier to accessing the remedy. It did not transform section 7(3) into a general judicial power to equalise wealth after divorce.
Section 7(5) permits the court to consider any relevant factor it considers appropriate when determining the extent of a redistribution order.
However, redistribution should not be confused with forfeiture of patrimonial benefits under section 9 of the Divorce Act. Forfeiture and redistribution are distinct remedies serving different purposes.
For a detailed treatment of forfeiture specifically, see MVA’s guide: When Can Pension Benefits Be Forfeited in Divorce?
The central redistribution enquiry remains contribution and what transfer would be equitable and just.
This area has developed further since EB/KG.
Section 7(7)(c) historically excluded pension interests in certain post-1984 marriages out of community of property without accrual.
After EB/KG expanded access to redistribution, that exclusion created an obvious inconsistency.
In G.D v Minister of Home Affairs and Others (2252/2024) [2025] ZAECQBHC 1; 2025 (5) SA 438 (ECGq) (4 February 2025), the High Court declared section 7(7)(c) unconstitutional and invalid because it continued to exclude pension interests from redistribution claims in post-1984 no-accrual marriages.
Because constitutional-invalidity orders by High Courts require confirmation by the Constitutional Court before becoming fully operative, the current status of any pension-interest claim should be checked carefully in the particular matter.
The decision has already had significant practical consequences.
In R.V.B v J.V.B [2024] ZAFSHC 378; 2025 (4) SA 297 (FB), the Full Bench confirmed that a spouse in pending divorce litigation could amend her counterclaim to introduce a redistribution claim based on the Constitutional Court’s decision.
In M.S v E.S [2025] ZAMPMBHC 96, the court similarly recognised the availability of redistribution to spouses married after 1984 out of community of property without accrual.
And in E.L.M v L.M (9360/2022P) [2025] ZAKZPHC 127 (5 December 2025), the court dealt substantively with a redistribution claim arising from a 1999 marriage without accrual, expressly acknowledging the effect of EB/KG.
This demonstrates that the Constitutional Court decision is no longer merely theoretical. It is influencing how redistribution claims are pleaded and adjudicated in current divorce litigation.
A spouse should not assume either “my ANC excludes accrual, so I can never claim against my spouse’s estate” or “EB means I am automatically entitled to half.” Both statements are incorrect.
The correct enquiry is more detailed: What does the ANC provide? Is the marriage out of community of property without accrual? What direct or indirect contributions were made? How did those contributions affect the maintenance or growth of the other spouse’s estate? What are the parties’ respective assets and obligations? What redistribution would be equitable and just? What evidence is available to prove the claim?
No. The Constitutional Court did not invalidate ANCs excluding accrual generally. It declared unconstitutional the statutory limitation that prevented certain spouses from accessing redistribution relief.
Potentially, yes, if the marriage is one to which section 7(3), as constitutionally adjusted, applies and the statutory requirements are met. Subsequent courts have applied the remedy to post-1984 no-accrual marriages.
Not automatically. The court determines what transfer, if any, is just after applying the statutory requirements.
No. Section 7(4) recognises direct and indirect contributions. Domestic services, expenses saved and other non-financial contributions may be relevant where they contributed to maintaining or increasing the other spouse’s estate.
It may be relevant evidence, but the court must assess the actual contribution and its connection to the maintenance or increase of the other spouse’s estate.
EB addressed this issue and recognised a death-related redistribution remedy, subject to the Constitutional Court’s remedial order and important deceased-estate qualifications. Specialist advice should be obtained promptly where a spouse dies during pending matrimonial proceedings.
No. Redistribution is a statutory remedy. It does not amount to a general power to rewrite or disregard the ANC.
Yes. A party intending to seek redistribution should obtain advice early and ensure that the factual basis for the claim and the relevant statutory requirements are properly pleaded and supported by evidence.
The Constitutional Court’s decision in EB v ER; KG v Minister of Home Affairs significantly changed the financial consequences that may arise from marriages out of community of property without accrual.
But the decision should not be reduced to the proposition that no-accrual marriages can now be divided. They cannot. Redistribution remains a fact-specific, discretionary remedy.
A spouse considering such a claim should establish the matrimonial property regime, identify the contributions made during the marriage, reconstruct the development of the respective estates and obtain the evidence necessary to show why a transfer would be equitable and just.
Martin Vermaak Attorneys Inc. advises on South African divorce matters involving redistribution claims, antenuptial contracts excluding accrual, complex matrimonial property disputes, business interests and financial contributions during marriage.
For related guidance, see MVA’s articles on Antenuptial Contracts South Africa and Divorce: Who Gets What in South Africa?.
Author: Martin Vermaak, B.Proc, LLB
Attorney of the High Court of South Africa | Director, Martin Vermaak Attorneys | Over 20 years’ experience in divorce and family law
Disclaimer
This information has been prepared for general educational purposes only and is not intended to constitute legal, financial, tax or other professional advice. South African family law is fact-specific, and the applicable legal position may depend on the circumstances of the individual matter. Readers should obtain independent professional advice appropriate to their circumstances before making legal, financial or other decisions.
– Co-owned House Divorce South Africa: Who Gets What
– EB (Born S) V ER (Born B) N.O. V And Others V KG V Minister Of Home Affairs And Others
– Property Sales In Community Of Property Marriages
– Executor And Estate Administration Services In South Africa
– Co-parenting After Separation: Building A Healthy Dynamic
Copyright © 2026 Martin Vermaak Attorneys. All rights reserved.
Terms of Use Privacy Policy
