Redistribution of Assets at Divorce: How the Constitutional Court Rewrote Section 7(3)

For decades, a spouse married out of community of property without the accrual system faced a stark reality at divorce: what stood in your name was yours, what stood in your spouse's name was theirs, and no court could interfere — no matter that you had spent thirty years raising children, running the household and building your spouse's career from behind the scenes. In October 2023 the Constitutional Court changed that landscape fundamentally. If you are married out of community of property, or contemplating divorce under such a marriage, this is a development you cannot afford to misunderstand.

What Is a Redistribution Order?

Section 7(3) of the Divorce Act 70 of 1979 gives a divorce court a remarkable power. Where spouses are married out of community of property under an antenuptial contract that excludes community of property, community of profit and loss and accrual sharing in any form, and they have not reached an agreement about their assets, the court may order that assets — or such part of the assets — of the one party as the court may deem just be transferred to the other party.

This is known as a redistribution order. It is an equitable corrective: it allows a court to look past the cold terms of the marriage contract and recognise the real contributions each spouse made to the wealth accumulated during the marriage.

The 1984 Cut-Off — and Why It Was Unfair

The remedy came with a serious catch. For ordinary civil marriages, section 7(3)(a) applied only to marriages concluded before 1 November 1984 — the date on which the Matrimonial Property Act 88 of 1984 introduced the accrual system. The legislature's thinking was that couples marrying after that date could simply choose the accrual system, so anyone who excluded it must have done so deliberately and should live with the consequences.

Reality proved less tidy. Many spouses — overwhelmingly women — signed antenuptial contracts excluding the accrual without independent advice, under family or financial pressure, or without appreciating what they were giving up. When such marriages ended, the economically weaker spouse could leave a long marriage with virtually nothing, while the redistribution remedy remained available to a shrinking class of pre-1984 marriages. A second anomaly compounded the first: the remedy applied only when a marriage ended in divorce, never when it ended in death — so a spouse who stayed married until the end was worse off than one who divorced.

EB v ER; KG v Minister of Home Affairs: What the Court Decided

Both anomalies came before the Constitutional Court in two cases heard together, EB (born S) v ER (born B) N.O. and Others; KG v Minister of Home Affairs and Others [2023] ZACC 32; 2024 (2) SA 1 (CC), decided on 10 October 2023 in a unanimous judgment written by Rogers J. The Court confirmed declarations of constitutional invalidity made by the High Court in Pretoria on both fronts:

• The date limitation fell. In the KG matter, section 7(3)(a) was declared invalid to the extent that it fails to include marriages concluded on or after 1 November 1984. Pending remedial legislation, the subsection is read as if the words limiting it to pre-1984 marriages were deleted — so the redistribution remedy is now available regardless of when the marriage was concluded.
• The death exclusion fell. In the EB matter, section 7(3) was declared invalid to the extent that it fails to include the dissolution of marriage by death. As interim relief, the Court read a new provision into the Matrimonial Property Act allowing a surviving spouse — or the executor of a deceased spouse's estate — to apply for a redistribution order when a qualifying marriage is dissolved by death.
• Parliament was given 24 months from the date of the order to cure the defects, with the Court's interim reading-in applying immediately in the meantime.
• Finality was protected. The orders do not disturb deceased estates that had already been finally wound up, nor the legal consequences of acts done and facts existing before the order in relation to post-1984 marriages.

The Court found that the exclusions discriminated unfairly — including indirectly on the grounds of gender — because the burden of the old regime fell disproportionately on women who had contributed to their spouses' estates through unpaid labour in the home.

What a Claimant Must Prove

A redistribution order is not automatic, and the judgment did not convert every marriage out of community into a fifty-fifty split. The statutory safeguards remain fully in place:

1. Contribution. Under section 7(4), a court may not grant the order unless 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 during the marriage — by rendering services, saving expenses that would otherwise have been incurred, or in any other manner. Running the household and raising children are precisely the kinds of indirect contributions this provision contemplates.
2. Judicial discretion. Under section 7(5), the court weighs the parties' existing means and obligations, any donations between the spouses, any forfeiture or related order affecting their patrimonial position, and any other factor it considers relevant.
3. Flexible implementation. Under section 7(6), the court may allow the paying party to satisfy the order in instalments or on conditions, including the furnishing of security.

The result is a fact-sensitive enquiry. The length of the marriage, the nature and extent of the contributions, and both parties' financial positions all matter. Well-prepared evidence — often reaching back decades — is what separates successful claims from unsuccessful ones.

What This Means for You

If you are married out of community of property without accrual, your antenuptial contract is no longer an absolute shield, and equally no longer an absolute bar. A financially weaker spouse contemplating divorce may now have a genuine claim to a share of assets built up during the marriage. A financially stronger spouse needs to understand that exposure when negotiating a settlement. And because the remedy now extends to dissolution by death, the judgment matters for estate planning and the administration of deceased estates too: a surviving spouse in a qualifying marriage may have a redistribution claim against the estate, and an executor may face one.

These claims must still be properly pleaded, quantified and proved — and the interplay with maintenance claims, forfeiture and the terms of a will can be intricate. Early, informed advice is essential on both sides of the dispute.

Whether you are considering divorce, negotiating a settlement, or administering an estate touched by this judgment, we can assess your position and protect your interests as part of our family law services. Contact us for a confidential consultation.