South African marriage judgment is a win for divorcees and surviving spouses

South Africa's Constitutional Court has fundamentally changed the country's marriage laws to make it fairer for people who marry “outside the community of property” when their marriages end. In these marriages, the property of the spouses is kept separate. They do not combine their properties into community property.

This change applies to people who married and divorced after November 1, 1984. or a person who was married before or after November 1, 1984, and whose marriage dies.

In the case of EB v. ER, the Supreme Court's decision of October 10, 2023, provides that when an interest-free marriage outside the community of property results in divorce or death, the economically vulnerable spouse, primarily the wife, will bring benefits. This includes stay-at-home moms who take care of the home and raise children full-time. Their non-economic contributions to the marriage, including unpaid work at home, are now valued as much as their economic contributions to the marriage.

Prior to 1 November 1984, there were only two legally recognized matrimonial property regimes applicable to marriages in South Africa. They were marriages within the community of property and marriages outside the community of property.

A community of property marriage is one in which the assets of both spouses are combined. If the marriage ends by divorce or death, each party has a 50% claim on the community property.

In a non-community property regime, the property of the spouses is always kept separate. Neither spouse has a claim on the other spouse's property, even if they have contributed to the maintenance or increase of the other spouse's property.

change

On 1 November 1984, the Matrimonial Property Act No. 88 of 1984 came into force. It introduced a third marital property system, the accrual basis.

This accrual system allows spouses married outside of a community of property to share in the growth of each other's property while maintaining separate property.

Both spouses maintain separate property during and during the marriage. When a marriage ends, either through divorce or death, the spouse with the lesser amount owed or no amount owed has a claim against the spouse with the greater amount owed. This claim is for an amount equal to half of the difference between the accruals of the spouses' respective estates.

For example, a wife and husband get married for R1,000 each. Both husband and wife were working when they got married. During their marriage, they decide that the wife will stay at home and take care of the house and the children, while the husband will continue to work and be the breadwinner of the family.

Assume that at the end of the marriage, the wife's property is valued at R3,000 and the husband's property is valued at R10,000. The accrual of the wife's property is her R2,000. The accrual of her husband's property is R9,000. Half of the difference The amount accrued between the spouses' inherited property is R3 500 (9 000 minus R2 000 equals R7 000, divided by 2 equals R3 500).The amount accrued to the wife's property. is less than the husband's property accrual, so the wife has a claim on the husband's property of R3 500. Estate.

The above crude example, even if unintentional, shows that outside of a community of property with an accrual system, even if the parties held separate property during the marriage, they would indirectly own each other's property. It shows that you are aware of the potential to contribute to its maintenance or growth. Just as wives did it through unpaid labor in the home.

judgment

When accrual addition was created, section 7(3) of the Divorce Act 1979 provided that spouses who were married outside the community of property before 1 November 1984 (and therefore did not have an accrual option) and amended to recognize spouses undergoing divorce proceedings. In the case of divorce, apply to the divorce court for a redistribution order.

The court may transfer the assets of one spouse to the other spouse through a redistribution order if it is just and equitable. This applies when one spouse directly or indirectly contributes to the maintenance or increase of the other spouse's wealth, such as through the provision of services.

In a judgment dated October 10, 2023, the Constitutional Court ruled, inter alia, that Article 7(3) of the Divorce Law is unconstitutional and invalid unless it: a) Spouses married outside the community of property; if the marriage is dissolved by divorce, the marriage occurs after 1 November 1984; and b) does not occur before or after 1 November 1984, and the marriage is dissolved by divorce. Spouses who were married outside the country and whose marriage ended due to death.

These parties cannot claim a redistribution order if they have contributed to the maintenance or increase of their spouse's assets.

Significance of the judgment

This court's decision will provide much-needed financial relief to spouses whose non-community of property marriages have ended, regardless of when the parties married or how the marriage ended. Become.

This ruling will also benefit spouses in Muslim marriages. These have become legal as the Constitutional Court declared in the 2022 Women's Legal Center Trust v. President of the Republic of South Africa that, inter alia, the common law definition of marriage and section 7(3) of the Divorce Act are as follows: Admitted. It is unconstitutional because it does not include marriage between Muslims. Spouses in a Muslim marriage who are currently separated from the community of unpaid property, dissolved by divorce or death, may apply to the court for a redistribution order transferring assets from the estate of one spouse to the estate of the other. Can be done.

next step

The South African Law Reform Commission Project 100E Advisory Committee on Reviewing Aspects of Matrimonial Property Law is reviewing existing legislation dealing with the marital property regime.

In view of the Constitutional Court's decision in Muslim Marriage and Fee Litigation, the Advisory Committee recommended that, inter alia, Article 7 of the Divorce Act be applied to ensure that all spouses married outside the community of property can do so without rights. Most likely to recommend amendments to paragraph 3. Applying to the court for a redistribution order if the marriage ends due to divorce or death.

The Commission recommends in Discussion Paper 160 that courts should retain discretion to ensure fair and equitable outcomes when granting redistribution orders.

Waheeda Amian is Professor of Legal Pluralism, Religious Family Law and Human Rights at the University of Cape Town.

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