Skip to main content

Marriage contracts in South Africa

Before 1984, couples had to choose between marrying

  • in community of property or
  • out of community of property

When a couple marries in community of property, whatever they own individually is joined to make one joint estate. If they divorce, this joint estate will be halved, regardless of what each put into the estate initially.

If the couple decides to marry out of community of property, they must spell this out in a contract they sign before their marriage. Each spouse’s estate, brought with them into the marriage, continues to exist as a separate entity. And all the assets added during the marriage by a spouse, continue to belong to that spouse.

These two systems still continue, but in 1984 the Matrimonial Property Act (MPA) added another option, an accrual system, that can apply to couples who marry out of community of property. Since 1 November 1984, when this law took effect, the accrual system is an option available for anyone marrying out of community of property. Spouses must specifically state in their pre-marriage contract if they want it to apply.

What the accrual system means is that, if the marriage ends by death or divorce, then the spouse whose estate has accrued nothing, or at any rate has accrued less than the other’s, can claim half the difference between the size of the two estates.

Many couples who had married before the 1984 MPA also wanted the accrual system to operate in their marriage contracts, because it is so much fairer. In response, parliament gave those couples a two-year window period (until 1 November 1986) to formally revise their marriage contracts and add the accrual system if they wanted to.

But what about couples that, for whatever reason, didn’t make the November 1986 deadline? What happens if they want to divorce, but had missed the deadline and so the accrual system’s ‘fairness’ didn’t apply?

And what about marriages where the couple missed the accrual system deadline and the marriage later ends, not because of divorce, but because one of the parties dies? Shouldn’t the same approach apply to such cases as well, with the possibility of a court-ordered redistribution of the estate of the deceased spouse?

These were the key questions that the constitutional court had to consider in two cases, recently heard and decided together.

A new judgment by the constitutional court could affect many South African couples when they divorce or when one spouse dies. The court’s approach to the sections of the law contested in the two cases considered in the judgment, reflects an increasing sensitivity to the position of women in South African society. It’s an important story and might even impact on you or someone you know. But to make sense of what the court said, and the difference that it could make, we first need to clarify a few key terms (see box above).

Read the judgment here:

Many women stay in unhappy – sometimes even dangerous – marriages because they fear they will be destitute if they leave.

They believe that while their husbands will emerge from a divorce still financially sound, they, as divorced women, will have nothing.

It’s a huge problem in South Africa and elsewhere, and it’s the cause of great misery to many women as well as the children who may be trapped with their mothers in an untenable domestic situation.

Though this is a problem that’s widely known, legislation in SA hasn’t always been keeping up by ensuring that legal provisions around divorce will result in financially fairer outcomes for women and their children.

Stumbling block for women

Fortunately, in SA, there might sometimes be another way for the law to be made more responsive to the needs of the people, namely via legal action through the courts.

And that is exactly what has happened in relation to two sections of law that had proved a stumbling block for women seeking to avoid financial destitution when their marriage ended.

The two unrelated cases, with tangentially linked subject matter, wound their way up to the constitutional court, where the judges recently delivered a unanimous decision that has been welcomed as a watershed.

The combined judgment is officially titled EB v ER; KG v Minister of Home Affairs.

Read the judgment here:

Written by judge Owen Rogers, formerly of the high court in the Western Cape, the decision concludes that parliament must take steps to fix the problems of unconstitutionality identified by the court and makes orders for what is to be done in the meantime.

Primarily, the problems discussed by the court are caused by a glitch in the law around what happens when a marriage ends.

Cut-off date indirectly discriminates against women

In the case of a marriage where the couple missed the cut-off date to add the accrual system to their antenuptial contract [see block above], the court found that setting a date and excluding everyone who missed it, was unconstitutional. Primarily, this was because it indirectly discriminated against the women in such marriage, many of whom will have been unaware of the benefits of such a system, or unable to persuade their spouses to agree to be bound by it.

When it came to divorce in a case where the accrual system was excluded because the couple hadn’t opted in by the cut-off date, it would usually be the woman whose financial position suffered more.

It would be fairer if the cut-off date didn’t apply, and the parties in any divorce could apply to the court for a redistribution of the larger estate. A court wouldn’t automatically agree, however: it would depend on the circumstances of each case. A judge would need to have information about what would be fair; what contributions a spouse had made, directly or indirectly, to the growth of the other spouse’s estate, and so on.

Redistribution also to be possible on the death of a spouse

Where a marriage ended because of the death of one spouse, the possibility of redistribution should also exist, the court found.

As in the case of a divorce, the estate of a deceased spouse could have been skewed by the unacknowledged contribution of the other spouse to the growth of the deceased estate. Although the law at present didn’t provide for the possibility of redistribution on the death of a spouse, there was no reason to exclude this possibility.

Again, however, a judge hearing such a matter would need to be satisfied by the facts presented, before agreeing that redistribution would be fair and justified under the circumstances.

Writing for the unanimous court, Rogers even gave an example of how a redistribution order could work in tandem with bequests in the will of the decreased. (See footnote 41 to the judgment.)

Women predominantly the disadvantaged spouse

So, what was the thinking of the court that lay behind these two significant findings of constitutional invalidity?

At the centre of it lay the judges’ awareness of the financial and other imbalances between men and women, in society, at work and in a relationship.

The judges quoted the high court’s finding that ‘historically, it was the wife who sacrificed her career’, and that while some men were taking on the role of homemaker, ‘women are still predominantly the economically disadvantaged spouses’.

This was an international phenomenon, rather than a problem specifically confined to SA.

Commenting on the approach of parliament when it passed the disputed law, Rogers said that ‘In general, the legislative philosophy was that parties should be bound by their choices’.

In principle, he said, it was legitimate for government to respect and enforce spousal choices, and the principle that contracts had to be honoured was ‘consistent with constitutional values’.

However, in the case before the court, the ‘burden of exclusion’ being complained of ‘falls more heavily on women than men.’

Women have less bargaining power

Rogers quoted the experts who gave evidence to the high court: SA has among the world’s highest gender income gaps and this disparity increases with age.

What this means is that women typically enter into marriage ‘poorer and more dependent than men, and therefore have less bargaining power.’ During the course of the marriage, cultural requirements often deepen these inequalities ‘by supporting an unequal division of care and household labour.’

‘Women in SA are least likely to be employed if they are married and most likely to be employed if they are divorced or have never been married.’

And the experts also stress that women who have no hope of gaining a share of marital property on divorce ‘may be trapped in violent relationships.’

Failure of legal rules

If the courts weren’t able to ensure an equitable division of assets on divorce, it would mean that ‘legal rules fail to correct the exploitation of women’s care and domestic labour, to the direct and structural advantage of men.’

Rogers concluded that the disputed section ‘indirectly discriminates against spouses on grounds of gender.’ He said the hardship for women in the position of KG ‘can be very great.’

‘A woman’s fundamental human dignity is impaired when no recognition is given to the contribution she has made to the increase in her husband’s estate.’

Not all prospective spouses are ‘commercially savvy’

On the argument that partners knew what they were doing when they made their choices about marital regime, he said that ‘some prospective spouses may be commercially savvy or have the benefit of independent advice, but for many others this is not the case.’

‘Prospective spouses are often young, in love and looking forward to a long relationship. A prospective spouse may readily succumb to pressure to sign a standard antenuptial contract excluding the accrual regime.’

He also pointed out that the international instruments by which SA was bound meant that the country should not ‘accept, as fair’, ‘a form of discrimination which continues in the main to prejudice women.’

Award must be ‘just and equitable’

Rogers briefly countered some of the justifications for the disputed system. Wouldn’t it amount to an ‘arbitrary deprivation of property’ if the courts were empowered to redistribute an estate on divorce?

No, he said. ‘It is anything but arbitrary to recognise, by way of a financial remedy, the contribution which one spouse has made to the increase of the other spouse’s estate.’ And besides, it was far from automatic as the court would first have to be convinced that such an award would be ‘just and equitable’ in any particular case, and that the one claiming redistribution had in fact ‘contributed directly or indirectly’ to the growth of the other spouse’s estate.

The fact that the court had to take into account a list of factors laid down in the law meant that the court didn’t have an ‘arbitrary discretion’ to make decisions on the question.

Constitutional invalidity in both cases

So, what was the end result, and what remedy did the court propose?

The high court’s order of constitutional invalidity was confirmed in both cases. In one, the law was declared unconstitutional because it didn’t permit redistribution when a marriage ended with the death of a spouse.

Parliament was given 24 months to fix the problem, and during that time the declaration of invalidity was suspended. In the meantime, however, the law was to be read as though it included a provision that a surviving spouse may ask for redistribution of the deceased person’s estate.

Similarly, the court held it was unconstitutional to exclude marriages from the accrual system on the basis of the date on which the marriage contract was finalised. Again, parliament was given 24 months to fix the defects in the law, and again, the court held that, in the meantime, the law should be read as though the disputed words had been deleted.

Wonderful in theory, but reality is more sobering

Commentators have welcomed the judgment as a landmark for ensuring fairness between spouses when a marriage ends. And it’s true that it could have an enormous impact.

However, there are three things to remember.

  1. Redistribution – on death or divorce – isn’t automatic. The court first must be presented with facts that show it would be fair for a judge to intervene, and that justice would be best served if the court did so. Anyone wanting to go this route must therefore be prepared to do the footwork necessary to prove the case.
  2. While the orders of the court could represent a dramatic improvement in the lot of many women seeking divorce, in reality this might be harder to achieve. That’s because of the backlogs in the court system that already cause significant delays in decisions and orders by the master of the court. When you factor in all the additional office work that the new decision could generate, it’s obvious that the court administration could become even more clogged, and decisions and orders could take even longer to be finalised. This means that, in practice, the promising outcomes of the judgment for individual women could be significantly delayed.
  3. Parliament has a growing reputation for not making legislative changes within the time frame laid down by the constitutional court. So, there’s no guarantee that the law will be changed within 24 months deadline stipulated by the court. Instead, the interim measures ordered by the court, with all the delays and other problems typical of temporary solutions, could well be the norm for the foreseeable future.