Introduction
South Africa’s family law framework, particularly concerning divorce, asset distribution, and marriage recognition, has undergone significant changes in recent years. This is due to recent court cases, the impending Marriage Amendment Act, and related legal developments focusing on marriages out of community of property.
Recent Court Cases on Divorce and Accrual
The most significant recent development is the Constitutional Court’s judgment in EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others (CCT 364/21; CCT 158/22) [2023] ZACC 32; 2024 (1) BCLR 16 (CC); 2024 (2) SA 1 (CC), delivered on 10 October 2023. This ruling addressed critical constitutional challenges to Section 7(3) of the Divorce Act 70 of 1979, which governs asset redistribution in marriages out of community of property without accrual.
Case Details
The judgment consolidated two cases:
EB v ER (CCT 364/21): This case involved a challenge to the absence of a redistribution remedy under Section 7(3) when a marriage is terminated by death for marriages entered into before 1 November 1984 (old ANC marriages). The Court declared Section 7(3) unconstitutional for failing to include dissolution by death, violating constitutional rights to equality and nondiscrimination. The declaration was suspended for 24 months to allow Parliament to amend the law, with interim relief provided by reading Section 36A into the Matrimonial Property Act 88 of 1984, effective immediately. Costs were ordered against the Minister, excluding costs of the 11th August 2022, appearance, with two counsel.
KG v Minister of Home Affairs (CCT 158/22): This case challenged the lack of a redistribution remedy for marriages entered into on or after 1 November 1984. The Court found paragraph (a) of Section 7(3) unconstitutional for limiting the remedy to pre-1984 marriages, deeming it indirect gender discrimination and unfair, not justified under Section 36 of the Constitution. The declaration was suspended for 24 months, with interim relief reading out the words “entered into before the commencement of the Matrimonial Property Act, 1984” from Section 7(3)(a), and including Section 36A. Costs were ordered against the Minister, including the costs of two counsel.
Implications
The judgment extends judicial discretion to order asset redistribution in marriages out of community of property without accrual, whether dissolved by divorce or death, regardless of the marriage date. This addresses historical inequities, particularly for women who, due to gender imbalances, often faced financial vulnerability post-dissolution. The ruling also considers non-financial contributions, such as homemaking and childcare, in asset division, aligning with constitutional values of fairness and equity.
Unconstitutional Parts of the Divorce Act
The Constitutional Court identified two unconstitutional aspects of Section 7(3) of the Divorce Act:
- Exclusion of Death Dissolutions: The provision did not allow for asset redistribution when marriages out of community of property without accrual ended by death, which was deemed discriminatory and a violation of constitutional rights, particularly affecting surviving spouses.
- Limitation to Pre-1984 Marriages: By restricting the redistribution remedy to marriages entered before 1 November 1984, the Act indirectly discriminated against spouses in newer marriages, often women, who made significant contributions without financial compensation. This was found to be unfair and unjustifiable under Section 36 of the Constitution.
These findings necessitated interim measures, with the Court reading in provisions to ensure asset redistribution, highlighting the need for legislative reform to align with constitutional principles.
Jurisdiction of the Court Overriding Antenuptial Contract Terms
The judgment has significant implications for antenuptial contracts (ANCs). In marriages out of community of property without accrual, ANCs typically specify separate estates, with no claim to the other’s assets upon dissolution. However, the Court’s ruling allows courts to override these terms under certain circumstances to ensure fair asset distribution. This is particularly relevant when one spouse has made substantial non-financial contributions, such as supporting the household or raising children, which may not be reflected in the ANC.
The interim relief, effective immediately, enables courts to order redistribution, striking a balance between contract freedom and constitutional rights to equality and fairness. This jurisdiction reflects a broader trend in South African law to prioritise equity, particularly in cases where financial disparities arise, often affecting women disproportionately.
The New Marriage Amendment Act
As of 23 July 2025, the Marriage Amendment Act, based on the Marriage Bill (B43-2023), is in the final stages of legislative process, with public hearings ongoing. Introduced on December 13, 2023, by the Minister of Home Affairs, the bill aims to consolidate South Africa’s fragmented marriage laws into a single statute, replacing the Marriage Act 25 of 1961, the Recognition of Customary Marriages Act 120 of 1998, and Civil Union Act 17 of 2006.
Link to Marriage Bill for information purposes:
https://www.parliament.gov.za/storage/app/media/Bills/2023/B43_2023_Marr iage_Bill/b43-2023-marriage-bill.pdf
Main Aims of the Amendment Act
The primary objectives include:
- Consolidation of Marriage Laws: To unify all marriage-related legislation under one Act, reducing legal uncertainty and ensuring consistency across civil, customary, and religious marriages.
- Recognition of All Marriages: To recognise marriages regardless of religion, custom, sexual orientation, or other factors, promoting equality and nondiscrimination. This includes recognising customary unions, religious marriages (e.g., Muslim marriages), and same-sex unions under a single legal framework, aligning with constitutional values.
- Eradication of Child Marriages: To set the minimum age for marriage at 18, criminalising marriages involving anyone under this age, aligning with international standards and protecting children’s rights. Previously, children over 16 could marry with parental consent, a practice the new Act seeks to eliminate.
- Simplification of Marriage Processes: To streamline the solemnization and registration of marriages, making the process more accessible and efficient for all couples, ensuring legal recognition and protection.
Replacement of Existing Marriage Laws and Recognition
The Marriage Amendment Act will replace the three existing laws, creating a single framework that ensures all marriages are treated equally under the law. This unification addresses the current fragmentation, where different types of marriages (civil, customary, and civil unions) are governed by separate statutes, leading to inequalities.
The new Act will:
- Repeal the Marriage Act 25 of 1961, incorporating its provisions into the new framework.
- Integrate the Recognition of Customary Marriages Act 120 of 1998, ensuring customary marriages are recognised alongside other forms.
- Absorb the Civil Union Act 17 of 2006, including provisions for same-sex and opposite-sex civil unions.
By doing so, the Act will recognise all marriages, regardless of the couple’s religion, custom, sexual orientation, or other factors, ensuring equal legal status and protection. Public hearings, such as those held in the Free State and North West in July 2025, reflect ongoing debates, including concerns about age of consent and recognition of cohabitation, indicating the complexity of achieving consensus.
Conclusion
The recent court cases and legislative reforms in South Africa reflect a commitment to equity, inclusivity, and constitutional compliance in family law. The 2023 Constitutional Court judgment has expanded courts’ ability to redistribute assets in marriages out of community of property without accrual, addressing past inequities. Meanwhile, the Marriage Amendment Act, expected to be enacted soon, promises to unify marriage laws, recognising all forms of unions and eliminating discriminatory practices like child marriage. These changes underscore South Africa’s ongoing efforts to align its legal system with constitutional values, ensuring fairness for all citizens.
By: Natascha Miller, LLB, BA [Forensics]
