Significant Changes to South African Divorce Law: What You Need to Know

Recent court rulings have brought about substantial changes to divorce law in South Africa, particularly regarding asset redistribution in marriages out of community of property.

As family law practitioners, we at Gittins Attorneys Incorporated want to keep our clients informed about these important developments.

The Law as It Was:

Previously, section 7(3) of the Divorce Act only allowed courts to order redistribution of assets in marriages out of community of property that were entered into before November 1, 1984 (when the Matrimonial Property Act introduced the accrual system).

This left many spouses, particularly women, vulnerable to financial hardship after divorce if they had contributed to the marriage through unpaid domestic labor.

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Last year’s Constitutional Court Case - EB (Born S) v ER (born B) and Others (2023):

This landmark ruling extended the redistribution remedy to all civil marriages out of community of property, regardless of when they were concluded.

The Court recognized that the previous law indirectly discriminated against women and failed to account for the economic value of domestic work.

Key changes:

• Redistribution now possible for all marriages out of community of property
• Courts must consider non-financial contributions to the marriage
• The fact that spouses chose to exclude the accrual system is only one factor to consider, not a bar to redistribution

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The more recent High Court Case - C v C (July 31, 2024):

This case provides guidance on how courts should apply the expanded redistribution remedy.

It emphasizes that:

• A redistribution claim is not an "extraordinary" remedy but a tool to address potential inequalities.
• Traditional domestic duties can qualify as contributions justifying redistribution.
• The principle of contractual freedom (pacta sunt servanda) carries less weight in this context.
• Courts must take a holistic view of the marriage, even if the relationship deteriorated years before divorce.

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Why These Developments Are Noteworthy:

• Greater financial protection for economically vulnerable spouses, often women.
• Recognition of the economic value of unpaid domestic work.
• More discretion for courts to ensure equitable outcomes in divorce settlements.
• Potential impact on how couples approach antenuptial contracts.
• May lead to more complex divorce negotiations and litigation.

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These changes represent a significant shift towards achieving substantive gender equality in South African family law. However, they also introduce new complexities to divorce proceedings.

If you're considering divorce or have questions about how these changes might affect your situation, we encourage you to seek professional legal advice.

At Gittins Attorneys Incorporated, we stay at the forefront of legal developments to provide our clients with the most up-to-date and effective representation in family law matters.