The Constitutional Court of South Africa has fundamentally changed the country’s marriage legislation. The change has made it more equitable for individuals who were married out of community of property before 1 November 1984.1
Before the recent ruling, parties could only apply to court for a redistribution order in terms of section 7(3) of the Divorce Act if they were married before 1 November 1984 and had chosen to enter into an Ante-nuptial contract “ANC” and Parties who had entered into an Ante-nuptial contract on or after 1 November 1984 were not entitled to apply for a redistribution order during divorce proceedings.
In its ruling2, the Constitutional Court determined that there is an unjust and indirect form of gender discrimination in the distinction made between individuals who entered into matrimony (including an antenuptial agreement) prior to November 1, 1984, and those who did so subsequent to that date.
So, what now?
To allow Parliament the opportunity to address the constitutional deficiencies, the declaration of invalidity was suspended for a period of 24 months.
Immediate Interim Relief
The Constitutional Court has thus provided for immediate interim relief, permitting a party to divorce proceedings who entered into matrimony with an ANC on or after November 1, 1984, to presently submit an application for a redistribution order. The presiding court in the divorce proceedings may subsequently issue a “just and equitable” redistribution order until measures are taken to correct this.
In this way, the Constitutional Court has made provision for immediate interim relief so that a party to divorce proceedings who concluded their marriage on or after 1 November 1984 with an ANC, may now apply for a redistribution order. A court hearing the divorce proceedings may then grant a redistribution order that it deems ‘just and equitable’.
It should however be kept in mind that such a redistribution claim is not an automatic entitlement. To ensure the success of a redistribution claim under Section 7(3) the asserting spouse must still provide evidence of direct or indirect contributions to the estate of the other spouse. Subsequently, the court that is adjudicating on the claim must determine not only whether the spouse in question is entitled to a claim, but also the magnitude of that claim, which can vary substantially from case to case.
This merely indicates that a claim under subsection 7(3) is not readily available , and that a court hearing the case will be required to take into account all relevant circumstances.
1 In these marriages, the estates of spouses are kept separate. They do not combine what they own into a joint estate.
2 The matters that brought the ruling: 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; 2024 (1) BCLR 16 (CC); 2024 (2) SA 1 (CC) (10 October 2023)
