ANC WITHOUT ACCRUAL? THE COURTS DECIDE TO INVOLVE THEMSELVES

Before exploring recent legal developments, it is important to understand the three primary matrimonial property regimes in South Africa:

· In community of property: All assets and debts are pooled into a joint estate, and divided equally upon divorce or death.

· Out of community of property with accrual: Each spouse retains a separate estate, but the growth of each estate during the marriage is shared at the time of divorce or death.

· Out of community of property without accrual: Each spouse’s estate remains entirely separate. Traditionally, there has been no sharing of assets or growth between spouses in this regime (until now).

Background: The Role of Antenuptial Contracts (ANC’s)

For decades, antenuptial contracts have offered South African couples flexibility in determining how assets will be managed during marriage and distributed in the event of divorce or death. Many couples choose to marry out of community of property and exclude accrual, under the impression that this approach keeps each party's estate completely separate.

However, two recent court rulings have significantly changed this understanding, and with it, the legal framework affecting thousands of marriages across the country.

Two Landmark Cases Reshape the Law

The Gauteng High Court's decision in K.R.G v Minister of Home Affairs and Others [2022] ZAGPPHC 311, and the Constitutional Court’s subsequent confirmation in EB v ER N.O. and Others; KG v Minister of Home Affairs and Others[2023] ZACC 32, found that a key provision of the Divorce Act unfairly discriminated against spouses (the majority being women) who contributed indirectly to the growth of the other spouse’s estate during the marriage.

The Constitutional Issue

In the past, Section 7(3)(a) of the Divorce Act 70 of 1979 allowed a court to order a redistribution of assets only if the parties were married out of community of property without accrual before 1 November 1984. This meant that spouses who entered into ANC marriages without accrual after that date had no legal right to claim a portion of the other spouse’s estate; regardless of their contributions, financial or otherwise.

The Constitutional Court held that this limitation violated the right to equality, and was therefore unconstitutional.

Key Changes Now in Effect

The Constitutional Court’s ruling introduced interim measures, each having an immediate legal effect:

1. Redistribution claims may now be brought in all ANC marriages without accrual, regardless of the date of marriage.

2. Such claims may also be made following the death of a spouse, provided the deceased’s estate has not yet been finalized.

Parliament has been given 24 months from the date of the Constitutional Court’s order to formally amend the Divorce Act. In the interim, the Court’s ruling is binding and enforceable.

A Practical Example

Consider the following scenario:

Ross owns assets valued at R1,000,000.00 at the time of his marriage to Rachel, who owns minimal assets. Over the course of the marriage, Ross’s estate grows to R3,000,000.00, while Rachel’s estate increases to only R150,000.00

· Under the accrual system, Rachel would be entitled to a share of the growth of Ross’s estate.

·  Under the previous rules for ANC without accrual, Rachel would leave the marriage with only her own assets, regardless of her contributions to Ross’s success.

· Under the new Constitutional Court ruling, Rachel may now apply to court for a redistribution of assets, provided she can demonstrate a direct or indirect contribution to the growth of Ross’s estate.

This legal development offers long-overdue recognition to spouses who have played a meaningful role in building a joint life, even where their contributions were not directly financial.

Legislative Update: The Path Ahead

The Government Gazette No. 52814, published on 6 June 2025, confirms that the General (Family) Laws Amendment Bill, 2025 will be introduced in Parliament. This Bill proposes amendments to the following legislation:

· The Divorce Act 70 of 1979

· The Matrimonial Property Act 88 of 1984

· The Mediation in Certain Divorce Matters Act 24 of 1987

These amendments will formally incorporate the Constitutional Court’s findings into South African law. The Bill also extends redistribution rights to cases where the marriage ends by death, and enhances the role of the Family Advocate, who represents the interests of children in disputes concerning parental rights and responsibilities.

If you are currently married out of community of property without accrual, or find yourself in the process of divorce, these changes may significantly affect your legal and financial rights.

At VST Attorneys, we are available to assist with:

·         Reviewing your current ANC

·         Advising on redistribution claims

·         Offering guidance for those entering into marriage contracts

·         Supporting you in safeguarding your financial future

Please contact our office to schedule a consultation. Our experienced family law team is ready to help you navigate this changing legal environment with clarity and confidence.