Historically, spouses married out of community of property without accrual were left completely economically separated upon divorce, regardless of their contributions. The Constitutional Court recently stepped in to address the inherent inequalities of this system.
The Background: Section 7(3) of the Divorce Act
Section 7(3) of the Divorce Act allows a court to order the transfer of assets from one spouse to another (a "redistribution order") if it is just and equitable, based on direct or indirect contributions made to the other spouse's estate[cite: 3]. However, the law historically limited this powerful remedy only to "old ANC marriages"—those entered into *before* the Matrimonial Property Act introduced the accrual system on 1 November 1984[cite: 3].
The Legal Question in KG v Minister of Home Affairs
In KG [2023] ZACC 32, a wife married *after* 1984 under an ANC without accrual sought a redistribution order. Because her marriage was a "new ANC marriage", she was barred from using Section 7(3). She argued this exclusion was unconstitutional[cite: 3].
What the Constitutional Court Decided
The Constitutional Court agreed with the applicant. The Court found that excluding post-1984 ANC marriages from the redistribution remedy amounted to indirect, unfair discrimination on the basis of gender[cite: 3].
The Court highlighted that while the law appeared neutral (differentiating only by the date of the marriage), its practical effect severely prejudiced women[cite: 3]. Due to structural inequalities, stereotypical domestic roles, and unequal earning capacities, women often enter marriages poorer, contribute heavily through uncompensated domestic/care labor, and leave financially devastated in strict out-of-community marriages[cite: 3]. Withholding a fair judicial remedy from these women was declared unconstitutional[cite: 3].
⚖️ The Constitutional Remedy
The Constitutional Court ordered a "reading-in" that severed the date restriction from Section 7(3)(a). Consequently, the judicial redistribution remedy is now potentially available to spouses in ANC marriages regardless of whether they married before or after 1 November 1984[cite: 3].
What This Means for Couples
- The courts look at fairness: Even in strict out-of-community marriages, significant indirect contributions (like homemaking and raising children) can be recognized by the court[cite: 3].
- ANCs are not absolute barriers: While an ANC sets the default proprietary regime, it cannot completely immunize a wealthier spouse against a justifiable redistribution claim if the other spouse contributed to their estate's growth[cite: 3].
⚠️ What This Case Does Not Mean
This case does not mean that every spouse will automatically receive half of the assets[cite: 3]. Redistribution is not the same as the accrual system. A spouse must actively prove to the court that they made a direct or indirect contribution to the growth of the other's estate, and the court retains broad discretion to decide what is "just and equitable"[cite: 3].