Many South Africans sign an antenuptial contract years before divorce ever crosses their minds, and a surprising number of people sign one without fully grasping what it excludes. When a marriage out of community of property without the accrual breaks down, the common assumption is that everything registered in each spouse’s respective names, are out of reach. Whilst this is still the norm, a landmark Constitutional Court judgment has created an option available to spouses to defer from this norm. A claim for a redistribution of assets is available to a wide group of divorcing spouses and understanding how the remedy works is prudent when entering into divorce proceedings.
What Is A Redistribution of Assets?
A redistribution of assets is a court order made in terms of section 7(3) of the Divorce Act 70 of 1979. It allows a Court granting a decree of divorce to transfer assets, or a portion of the assets, from one spouse’s estate to the other, under circumstances where the Court finds that it would be just and equitable to do so. The remedy applies to marriages out of community of property in which community of property, community of profit and loss and the accrual system have all been excluded by antenuptial contract.
It is important, however, to understand what the order does and does not do. It does not merge the spouses’ estates or create shared ownership during the marriage. It operates once, at the time of divorce, and only when one of the spouses asks the Court for such relief. The court is not asked to divide the couple’s combined wealth down the middle. It is asked whether a transfer from one estate to the other is warranted on the facts, and if so, how much should be transferred. Importantly, there is no fixed formula nor default percentage.
How Redistribution Differs from an Accrual Claim
An accrual claim is contractual and arithmetical. Where the accrual system applies to a marriage, the spouse whose estate grew by less has a claim to half the difference between the two accruals, calculated according to a set formula. A redistribution claim is entirely different. It is discretionary, there is no formula, and the outcome depends on the contributions a spouse can prove rather than on a calculation. Spouses married out of community of property without accrual have no accrual claim, because they contracted out of one. Redistribution is a separate statutory route that may still be available to a party who contracted to marry out of community of property, without the accrual.
The History Behind Section 7(3)
When the Matrimonial Property Act 88 of 1984 came into operation on 1 November 1984, it introduced the accrual system and gave engaged couples a choice between three matrimonial property regimes: in community of property, out of community of property with accrual, and out of community of property without accrual. At the same time, Parliament inserted section 7(3) into the Divorce Act to soften the harshness of older marriages concluded before the accrual system existed.
The 1 November 1984 Cut-Off
As originally drafted, section 7(3) only applied to marriages out of community of property entered into before 1 November 1984. The reasoning was that couples marrying after that date had the accrual system available to them as a fair alternative, so those who excluded it were held to their choice. The result was a hard line through South African marriages. A spouse who signed an antenuptial contract excluding accrual on 31 October 1984 could ask the court for a redistribution of assets, while a spouse who signed an identical contract a week later could not, no matter how long the marriage lasted or how much they had sacrificed for the household during the marriage.
Over the years, the courts gradually widened the pool of marriages that qualified. Judicial discretion was extended to certain marriages concluded under the former Transkei Marriage Act, to customary marriages following the Constitutional Court’s decision in Gumede, and to Muslim marriages after the Supreme Court of Appeal’s ruling in the Women’s Legal Centre Trust matter. Each extension chipped away at the original date-based restriction, but spouses in ordinary civil marriages concluded after 1 November 1984 remained excluded.
The EB v ER Constitutional Court Judgment
In October 2023, the Constitutional Court handed down its judgment in EB v ER and Others; KG v Minister of Home Affairs and Others, and the legal landscape shifted decisively. The Court held that the 1 November 1984 cut-off was unconstitutional because it amounted to unfair discrimination, particularly against women who are disproportionately affected by the absence of a redistribution remedy. The Court also found that excluding marriages dissolved by death, rather than divorce, served no legitimate purpose.
The Court recognized that the choice to sign an antenuptial contract is not always freely and equally made. Social pressure, imbalances of power between the parties and limited access to legal advice can all influence the terms on which people marry. The mere fact that the accrual system was available at the time of the marriage was not, in the Court’s view, sufficient justification for denying one spouse any remedy decades later.
What the Judgment Changed
Spouses married out of community of property without accrual after 1 November 1984 may now apply for a redistribution of assets during divorce proceedings. Pending corrective legislation, the Court put interim measures in place that effectively extend section 7(3) to these marriages, which means divorcing spouses can rely on the remedy immediately. The Court also created a distinct interim remedy for qualifying marriages that end through death.
What the Judgment Did Not Do
The judgment is often misunderstood, and a few misconceptions are worth correcting early. It did not cancel anyone’s antenuptial contract, and it did not convert marriages without accrual into accrual marriages. It created no presumption of equal sharing and no automatic entitlement to half of the other spouse’s estate. It did not reopen finalized divorces or wound-up deceased estates. What it did was enlarge the class of spouses entitled to ask for redistribution, while leaving the statutory requirements and the court’s discretion fully intact.
What You Must Prove in a Redistribution Claim
Eligibility is only the beginning of the enquiry. Section 7(4) of the Divorce Act provides that a redistribution order shall not be granted unless the court is satisfied that it would be equitable and just because the claiming spouse contributed directly or indirectly to the maintenance or increase of the other spouse’s estate during the marriage. That contribution can take the form of rendering services, saving expenses that would otherwise have been incurred, or any other manner of contribution.
Three elements sit inside that provision. First, there must be a contribution, which may be financial or non-financial. Second, there must be a link between that contribution and the other spouse’s estate, meaning the contribution must have maintained or increased it. Evidence of hardship or financial inequality alone does not satisfy this element. Third, the court must be satisfied that a transfer would be just and equitable in all the circumstances.
Homemaking and childcare are capable of amounting to substantial indirect contributions, particularly where they saved household expenses or freed the other spouse to build a business or career or instead place those savings into an investment account. The often-repeated claim that domestic work counts for little is wrong, but so is the opposite belief that being the homemaker automatically produces a share. The nature, duration and economic significance of the contribution must be properly pleaded and proved.
The Factors a Court Will Weigh
Section 7(5) directs the court to consider the existing means and obligations of both parties, any donations made between the spouses, any other orders affecting their patrimonial position, and any further factor the court believes should be considered. That final category is deliberately wide, and matters such as the duration of the marriage, the origin of the assets and the conduct of the parties may all carry weight. A long marriage in which one spouse accumulated nearly all the assets while the other ran the home presents very differently from a short second marriage built on inherited wealth.
The Courts Are Applying the Remedy
A recent KwaZulu-Natal High Court judgment illustrates how the expanded remedy works in practice. The parties had lived together from 1993, married out of community of property without accrual in 1999, and separated in 2023. The wife had worked in her husband’s legal practice, managed the household, raised the children and paid certain expenses from her own salary, yet approached her late fifties with almost no assets or retirement savings while her husband had built up a substantial estate.
The Court ordered the husband to transfer forty percent of the net value of his estate to his wife, together with rehabilitative maintenance of R20 000 per month for twelve months. Significantly, the Court took the six years of pre-marital cohabitation into account, finding that the couple’s life together before the wedding resembled a universal partnership and formed part of the broader picture when assessing what would be equitable. The judgment also reflects the courts’ preference for a clean break, favoring a once-off redistribution combined with time-limited maintenance over an ongoing maintenance obligation.
Trusts and Companies
Redistribution claims become genuinely complex where wealth is held in trusts, companies or retirement funds. Trust assets belong to the trust rather than the spouse, but where a party wishes to pierce this corporate veil, it can do so by joining the Trust to the proceedings, if there is a valid and legal basis upon which to do so, keeping in mind that this legal basis must be pleaded and proved.
A company’s assets likewise do not become the shareholder spouse’s personal property simply because that spouse is, for example, a director of the company, although the value of the shares or member’s interest may well form part of the spouse’s estate.
Proposed Legislative Reform
Parliament is currently considering the General (Family) Laws Amendment Bill of 2025, which is intended to give permanent legislative effect to the Constitutional Court’s ruling. The Bill proposes amending the Divorce Act so that redistribution is available regardless of when the marriage was entered into and amending the Matrimonial Property Act to provide for redistribution where a qualifying marriage is dissolved by death. Until the Bill is enacted, the Constitutional Court’s interim measures continue to govern, and the legislative position should be confirmed at the time you take advice.
Protecting Your Position
If you believe a redistribution of assets claim may arise in your divorce, the time to act is before divorce proceedings are instituted. The claim must be pleaded within the divorce action itself and cannot be raised after the decree has been granted, so early preparation matters. Whether you are considering bringing a claim, or anticipate that you will be required to defend one, redistribution disputes are fact-intensive and turn on evidence built up over the course of a marriage.
Speaking to an experienced family law attorney at the earliest opportunity will allow your antenuptial contract to be properly assessed and your claim or defence to be correctly pleaded.
