Background: Marriage and Divorce Proceedings
In October 2009, a couple embarked on their marital journey with a clear legal framework in place. They entered into an antenuptial contract that explicitly excluded community of property, community of profit and loss, and any form of accrual sharing, as provided for in Chapter I of the Matrimonial Property Act 88 of 1984. Their marriage story took a turn in April 2021 when the husband initiated divorce proceedings.
The wife, while opposing the divorce, initially filed a counter-claim that acknowledged their marriage regime without seeking any relief regarding the property consequences of their marriage. However, the landscape of South African matrimonial law was about to shift dramatically. In September 2023, she sought to amend her counter-claim to introduce a redistribution order based on Section 7(3) of the Divorce Act 70 of 1979, reading it alongside the constitutional invalidity declaration from GKR v Minister of Home Affairs and Others [2022] ZAGPPHC 311.
This amendment application came at a crucial time in South African matrimonial law. The Constitutional Court had just confirmed the order of invalidity in EB v ER N.O and Others [2023] ZACC 32 on 10 October 2023. The timing was significant as the amendment was brought before any trial proceedings commenced or evidence was led.
The husband objected to this proposed amendment on three grounds: that his wife was attempting to withdraw an admission, that she was trying to incorporate aspects not currently prevailing in law, and that she was seeking legal aid on a basis the court was not competent to provide. The court a quo dismissed her application with costs on an attorney-and-client scale, making them immediately taxable and payable.
The court’s dismissal hinged on several key points: it viewed the marital regime as an admitted fact and saw the proposed amendment as an attempt to negate the prenuptial contract. It also interpreted the EB case’s order as limiting retrospective effect, concluding it would not impact antenuptial contracts concluded before October 2023. Most significantly, it determined that the claim the wife sought to introduce was not prevailing law and would only become so in the future.
This case would become a crucial test of how South African courts would interpret and apply the constitutional developments in matrimonial property law, particularly regarding the retrospective application of the EB judgment to pending divorce matters.
The Constitutional Court’s Landmark Decision in EB v ER
The judgment in EB v ER N.O and Others [2023] ZACC 32 fundamentally altered the matrimonial property landscape in South Africa. The Constitutional Court’s order contained six pivotal paragraphs that transformed the application of Section 7(3) of the Divorce Act. At its core, the Court declared paragraph (a) of Section 7(3) constitutionally invalid to the extent that it failed to include marriages concluded after the commencement of the Matrimonial Property Act 88 of 1984.
The Court’s order was carefully structured to balance immediate relief with practical implementation. It suspended the declaration of invalidity for 24 months to allow Parliament to address the constitutional defects. However, it also provided interim relief by effectively striking out the temporal limitation that previously restricted redistribution orders to marriages entered into before the Matrimonial Property Act’s commencement.
The retrospective application of this order became a central point of legal interpretation. The Court, drawing on principles established in Ferreira v Levin N.O and Others [1995] ZACC 13, addressed the doctrine of objective constitutional invalidity. This doctrine, evolving from the interim to the final Constitution, fundamentally changed how courts approach retrospectivity in constitutional matters.
Under Section 172(1) of the Constitution, courts must declare laws inconsistent with the Constitution invalid, but may limit the retrospective effect of such declarations. The EB judgment carefully balanced these principles, providing immediate prospective application while protecting the finality of completed divorces.
The Court’s reasoning aligned with the earlier Gumede v President of the Republic of South Africa [2008] ZACC 23 decision, emphasising that nothing in the order would affect marriages already terminated by death or divorce before the judgment date. This approach demonstrated the Court’s commitment to legal certainty while addressing historical inequities in matrimonial property law.
The judgment marked a significant shift from the previous position where redistribution orders were only available in three specific categories of marriages out of community of property. This development reflected the Court’s recognition of the need to address financial imbalances in marriages, regardless of when they were concluded, while maintaining respect for the parties’ chosen matrimonial property regime.
Understanding Section 7(3) of the Divorce Act and Redistribution Orders
The power vested in South African courts to make redistribution orders is a nuanced one that requires careful consideration of multiple factors. A crucial distinction exists between redistribution orders and the underlying matrimonial property regime – the order does not alter the basic regime chosen by the parties, but rather provides a mechanism for addressing financial imbalances that may have developed during the marriage.
When considering a redistribution order under Section 7(3) of the Divorce Act 70 of 1979, courts must assess whether one spouse made direct or indirect contributions to maintaining or increasing the other spouse’s estate. This could include non-financial contributions such as maintaining the household or caring for children. The court’s discretion is wide-ranging, allowing consideration of numerous factors to determine what constitutes a just and equitable distribution.
The mechanism is not designed to create an accrual system through the back door or to arbitrarily redistribute assets based on perceived fairness. Instead, it serves as a targeted remedy for specific situations where one spouse’s contributions to the marriage have not been adequately reflected in their financial position at divorce.
Importantly, a redistribution order is not automatic – the court must be satisfied that it would be just and equitable to grant one. The onus rests on the spouse seeking the order to demonstrate why they should be awarded a portion of the other spouse’s property. The court’s power to grant such orders is subject to subsections (4), (5), and (6) of Section 7 of the Divorce Act, which provide additional guidelines and restrictions on how this discretion should be exercised.
The significance of this remedy lies in its ability to address potential unfairness that might arise from strict application of an out of community of property regime, particularly in cases where one spouse has made substantial contributions to the marriage partnership without acquiring corresponding assets in their name. It represents a legislative recognition that the formal equality of an antenuptial contract might need to be tempered by considerations of substantive equality at the point of divorce.
The High Court’s Analysis of Retrospective Application
The Free State High Court’s analysis centered on the complex interplay between the Doctrine of Objective Constitutional Invalidity and the specific limitations placed on retrospectivity by the Constitutional Court. Drawing from Section 172(1) of the Constitution, the Court emphasised that any law inconsistent with the Constitution is invalid from inception, unless specifically limited by court order.
The Court’s interpretation differed markedly from the court a quo’s restrictive reading of the EB v ER judgment. Where the lower court had interpreted paragraph 5 of the Constitutional Court’s order as limiting the application to future antenuptial contracts, the High Court found this interpretation failed to distinguish between the existence of an antenuptial contract and its consequences upon divorce.
A key element in the Court’s reasoning was that if the Constitutional Court had intended to exclude pending matters from its order of perspectivity, it would have done so explicitly. This interpretation was strengthened by examining the context of the constitutional challenge in both the GKR and EB cases, which specifically dealt with pending divorce proceedings.
The Court drew a crucial distinction between finalised and pending cases. While acknowledging valid policy reasons for not disturbing completed cases, it found no compelling reason to deny the remedy to parties whose divorces were still pending. This approach aligned with the Constitutional Court’s stated aim of providing immediate effective relief through interim measures during the 24-month suspension period.
The judgment emphasised that Section 7(3) of the Divorce Act is triggered only at the point of divorce, not during the marriage. Therefore, while an antenuptial contract regulates the parties’ property relations during marriage and vis-à-vis third parties, the actual exercise of rights regarding asset division is deferred until the marriage’s dissolution. This timing aspect became crucial in understanding the intended scope of the Constitutional Court’s order.
The High Court’s analysis effectively created a clear framework for applying the constitutional invalidity order: marriages terminated before 10 October 2023 would not be affected, but those still pending could benefit from the expanded scope of Section 7(3), regardless of when the marriage was concluded.
Implications for Pending Divorce Cases in South Africa
The judgment in RVB v JVB (A92/2024) [2024] ZAFSHC has created a moment for pending divorce matters in South Africa’s legal landscape. For marriages out of community of property with complete exclusion of accrual sharing, regardless of when they were concluded, spouses in pending divorce proceedings now have the opportunity to pursue redistribution claims.
The decision clarifies that the cut-off date of 10 October 2023 serves only to protect finalised divorces, not to limit claims in pending cases. This interpretation opens the door for many spouses who previously thought they had no claim to marital assets to seek financial justice through the courts, provided their divorce matters haven’t been concluded.
The practical effect is particularly significant for spouses who made substantial contributions to their partners’ estates during marriage but, due to their choice of marital regime, would otherwise have no claim to these assets. The court’s interpretation ensures that the constitutional invalidity declaration in the EB case provides immediate and meaningful relief to those currently navigating divorce proceedings.
For legal practitioners, the judgment provides clear guidance on amending pleadings in pending divorce matters. It confirms that introducing a redistribution claim does not constitute an attempt to withdraw an admission about the marriage regime, but rather seeks to invoke a remedy that exists independently of that regime. This distinction is crucial for procedural purposes and the framing of amendments.
The ruling also demonstrates the courts’ evolving approach to matrimonial property law, showing a commitment to substantive equality while respecting the sanctity of final judgments. By allowing amendments in pending cases while protecting completed divorces, the judgment strikes a balance between legal certainty and constitutional rights, setting a precedent that will influence South African family law for years to come.
Questions and Answers
What is the significance of the cut-off date of 10 October 2023 mentioned in the judgment? The date marks the Constitutional Court’s order in EB v ER, and only prevents redistribution claims in divorces finalised before this date. It does not affect pending divorce matters or future divorces.
How does the judgment affect marriages concluded after 1 November 1984? These marriages can now benefit from redistribution orders under Section 7(3) of the Divorce Act, provided the divorce was not finalised before 10 October 2023.
Does applying for a redistribution order affect the validity of the antenuptial contract? No, the redistribution order does not invalidate or change the matrimonial property regime; it merely provides a mechanism for addressing financial imbalances at divorce.
What must a spouse prove to succeed with a redistribution claim? They must demonstrate that they made direct or indirect contributions to maintaining or increasing their spouse’s estate and convince the court that a redistribution order would be just and equitable.
What is the effect of the Constitutional Court’s suspension of invalidity for 24 months? While Parliament has 24 months to cure the constitutional defects, the Court provided immediate interim relief allowing redistribution claims in pending divorces.
Can a spouse amend their pleadings to include a redistribution claim if their divorce is still pending? Yes, the judgment confirms that such amendments are permissible and do not constitute an improper attempt to withdraw admissions about the marriage regime.
How does the doctrine of objective constitutional invalidity apply in this case? The doctrine establishes that unconstitutional provisions are invalid from inception, but the Constitutional Court limited this retrospective effect to protect finalised divorces.
What happens to divorces finalised before 10 October 2023? These divorces cannot be reopened to claim redistribution orders, even if they involved marriages concluded after 1 November 1984.
Must the contribution to the other spouse’s estate be financial? No, the court can consider both direct and indirect contributions, including non-financial contributions like maintaining the household or caring for children.
What factors will a court consider when deciding whether to grant a redistribution order? The court has wide discretion and can consider numerous factors to determine what is just and equitable, subject to subsections 4, 5 and 6 of Section 7.
Does the judgment create an automatic right to redistribution? No, each case must be decided on its merits, and the spouse seeking redistribution must prove why it would be just and equitable to grant the order.
Can third parties’ rights be affected by a redistribution order? No, the judgment confirms that antenuptial contracts continue to regulate the parties’ property relations vis-à-vis third parties during the marriage.
When is Section 7(3) of the Divorce Act triggered? The section is only triggered at the point of divorce, not during the marriage, even though the contributions considered may have occurred throughout the marriage.
What happens to pending divorce cases where amendments were previously refused? Given this judgment’s interpretation, parties may now have grounds to reapply for amendments to include redistribution claims if their divorces are still pending.
How does this judgment affect future antenuptial contracts? While parties remain free to choose their matrimonial property regime, they must be aware that courts now have the power to grant redistribution orders regardless of when the marriage was concluded.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here.
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