By Refentse Chuene and Jordan Moonsamy

On October 10, 2023, the Constitutional Court (CC) in EB (born S) versus ER (born B) and Others; and KG versus Minister of Home Affairs and Others (2023), ZACC 32, confirmed an order of constitutional invalidity relating to section 7(3) of the Divorce Act, 1979 (the act) handed down in two interconnected cases. The judgment provides indigent spouses financial protections post the dissolution of their marriage.

For ease of reference, and to be consistent with the court’s approach, any reference to an “ANC marriage” refers to marriages subject to an antenuptial contract (ANC), which excludes community of property, profit and loss and accrual sharing (as applicable), and any references to “old” and “new” ANC marriages refer to ANC marriages entered into before and after November 1, 1984 (the commencement date of the Matrimonial Property Act, 1984) respectively.

The cases

Both cases concern the constitutional validity of section 7(3) of the act. The section provides that, where parties are married under an ANC marriage, upon dissolution of the marriage by divorce, a court may, where it is just and equitable to do so, make an equitable redistribution order such that the assets of one spouse may be transferred to the other.

In determining whether the order is just and equitable, a spouse must prove, and the court must be satisfied, that the party in whose favour the order is granted, contributed directly or indirectly to the maintenance or increase of the estate of the other party during the existence of the marriage, either by the rendering of services, the saving of expenses that would have otherwise been incurred, or in any other manner. Under the previous reading of the section, the so-called “redistribution remedy” was available only if the marriage was entered into before November 1, 1984.

In the EB versus ER case, the High Court identified that a marriage dissolved by death, as opposed to divorce, represented a gap in the application of section 7(3) of the act. The court read in a remedy such that section 7(3) was now also applicable to a court considering a redistribution claim following a marriage dissolved by death. In evaluating the High Court’s finding, the CC found that section 7(3) created a differentiation for spouses in an old ANC marriage. Such spouses have the benefit of a redistribution remedy only where the marriage is dissolved by divorce, and not by the death of a spouse. The CC found that such differentiation was unsubstantiated in law and, ultimately, amounted to unfair discrimination under section 9 of the Constitution (right to equality).

The redistribution remedy was introduced to aid spouses in resolving the unfairness and hardships that come with being in a marriage regulated by an ANC that was not subject to the accrual system. Such hardships arise regardless of whether the marriage is dissolved by death or divorce; therefore, the CC found no legitimate purpose behind the differentiation. Similarly, in KG versus Minister of Home Affairs and Others, which considers the absence of a redistribution order remedy in a new ANC marriage, it was held that such hardships exist whether the ANC marriage was entered into before or after November 1, 1984.

In the KG case, Mrs. G launched an application declaring section 7(3) unconstitutional insofar as it only applied to old ANC marriages without the accrual system. The High Court declared the limitation unconstitutional and notionally severed it from section 7(3) pending confirmation by the CC. The High Court also acknowledged that section 7(3) was introduced to protect disadvantaged spouses who were the “economically inactive” spouses of an old ANC marriage where there was no accrual system for them to automatically share in the estate.

In the CC, it was emphasised that section 9(3) of the Constitution prohibits direct or indirect discrimination on the basis of any of the grounds listed therein. This places an emphasis not on the form of the conduct but on its consequences: neutral and non-discriminatory conduct may nevertheless result in discrimination. As such, the CC found that although the direct differentiation is based on the date of the marriage and, in turn, the availability of the accrual regime as the default regime for marriages out of community of property, the indirect effect was that women were burdened by the exclusion of the redistribution remedy more than men. Through this implicit exclusion, section 7(3) was found to be unfairly discriminatory on the listed grounds of gender. The ensuing presumption of unfairness was not rebutted, as a spouse (more often than not, a woman) to a new ANC marriage has just as much need for the redistribution remedy as a spouse to an old ANC marriage. Differentiating between the two is not justifiable.

The order and future landscape of divorce law

The CC, in each case, upheld the declaration of constitutional invalidity, suspending the order for 24 months to allow Parliament to address the defects in the law as identified by the court. In the interim, as per the EB case, the Matrimonial Property Act, read with section 7(3) of the Divorce Act, will afford a surviving party to an old ANC marriage, dissolved by divorce or death, the protections of the redistribution remedy. Similarly, as per the KG case, a party to a new ANC marriage will, as an interim measure, have recourse to a redistribution order under section 7(3).

As a direct consequence of the CC’s order, the redistribution remedy has been extended, such that, regardless of when an ANC marriage was entered into, and whether it is dissolved by divorce or death, spouses will benefit from the protections of the remedy.

It is our submission that the judgment takes a necessary step in achieving equality and fairness in the dissolution of a marriage, mandated not only by South Africa's international law obligations as referenced by the CC but also by the values entrenched in the Bill of Rights.

The decision highlights the prevailing inequalities that have plagued the institution of marriage since its inception and represents a step in the right direction by our courts to protect the most vulnerable in society. It was aptly put by the High Court in EB that “(o)nly those who go blindfolded through life can deny that gender equality has not yet been achieved in South Africa”. The measures put in place by the CC through this judgment ensure that no party is left behind in the dissolution of the marriage, particularly where the marriage contract may have been marred by a power imbalance resulting in inequity for one of the parties.

* Refentse Chuene is a senior associate, and Jordan Moonsamy, a candidate attorney, Corporate/M&A Practice at Baker McKenzie.

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