Before 1 November 1984, South Africa had two marriage property regimes: in community of property and out of community of property. In the case of couples married in community of property, each party has a 50% claim on the joint estate, while in the case of couples married out of community of property, there’s no claim. After 1 November 1984, the accrual system was introduced, allowing spouses that are married out of community of property to share in each other’s estate growth. Upon divorce or death, the spouse with the smaller accrual can claim half the difference.
Changes in the Divorce Act addressed spouses married before 1 November 1984, without the option to be subject to accrual, allowing for court-ordered asset redistribution if the court deemed it just. A recent court case, EB v ER, found this amendment unconstitutional, as it excluded spouses married after 1 November 1984 in divorce cases and those married before that date in the case of the death of a spouse.
After a divorce, people are often faced with financial challenges. These challenges are particularly abundant in situations where one spouse has a lower income due to the other spouse having given up their careers to fulfil the households family responsibilities. To ensure that a fair transition is made from “married” to “divorced” it is crucial that these differences in income are recognised. EB v ER emphasises the importance of fairness, insofar as it applies to marriages after 1 November 1984 that have ended as a result of divorce and those before that date that have ended as a result of both divorce and death.
The significant decision, heard in October 2023, now acknowledges and values the unpaid work of spouses who have been tasked with caring for the home or raising children in marriages that are out of community of property, as well as those not subject to accrual. This is a significant decision as it brings non-financial contributions to the same footing as financial ones. Now, spouses with non-financial contributions in marriages without accrual can seek redistribution orders, regardless of when or how the marriage ended. This is a ground breaking change for fair treatment at the dissolution of a marriage, and a true demonstration of justice in motion.
Contact VST Attorneys if your marriage has come to an end and you want to see justice fairly served.
By: Melissa van Rensburg (CA)
Edited by: AJ Truter (director)
