Authored By: Nolwazi Nyilika
University of Pretoria
1 INTRODUCTION
The aim of this research is to evaluate marriages that are subject to an out of community of property without the application of the accrual system before to the commencement of the Matrimonial Property Act using the historical approach.
Cultural we grew up believing that every marriage had to end in marriage and that what we build together belongs to both of us. It is unfortunate that couples, particularly women, are often left in darkness or with nothing after the death of one spouse or divorce due to their marriage being outside the community without accrual. It is disheartening to read stories and social media posts about old women crying and advising young women not to get married because some of them are trapped in loveless marriage. Most spouses are fighting for their rightful share due to their direct or indirect contributions to the marriage, such as homemaking, financial contributions, and childcare responsibilities for the benefit of the marriage. The case Harksen v Lane NO is the perfect example of what I wrote above. In this case the equality clause in Could it be the time has arrived for the Bill of Right to stand for what they promised the citizens in Section 9(1) and (3) of the Constitution. The South African Constitution,[1] states that all individuals are equal in the eyes of the law and are entitled to fair treatment and protection.[2] According to Section 9(3) of the Constitution, specifically prohibits any form of unjust discrimination based on race, gender, sex, pregnancy, marital status, ethnic and social background, colour, sexual orientation, age, disability, religion, conscience belief, culture, language, and birth.[3]
Constitution says legislation recognises marriages concluded under any tradition, or a system of religious, personal or family law.[4] The case of EB (born S) v ER (born B);[5] KG v Minister of Home Affairs 2024 are the evidence that in the end of these marriages whether by death or divorce women are deprived to get the share of what they direct or indirectly contributed to the marriage. I looked at the current legislation that we have in South Africa pertaining to the Marriage out of community of property without the application of the accrual system whilst the marriage is still active and upon dissolution according to Matrimonial Property Act 88 of 1984 and the Divorce Act 70 of 1979 and use the case laws that support the topic therein and the position of the Constitution. The recent court judgement and rulings dealt with gender discrimination,[6] and asset redistribution order for marriages that were concluded out of community of property before 1984 without the benefit of an accrual system.[7] In this chapter, I will describe the systems available for marriage formalities in the South. I shall talk about brief overview of marriages and how they were formed. Furthermore, I will examine how the new Act and discuss the implications for marital regime in South Africa.
1.2 PROBLEM STATEMENT
The problem being addressed in this research is the transformation of marriages out of community of property without the accrual system and to evaluate how these implications impact modern legal settings. The Matrimonial Property Act,[8] which took effect on 1 November 1984, abolished the husband’s marital power in all marriages regarding all marriages entered after the commencement date of the Act. Before the Matrimonial Property Act was implemented, a spouse who was married out of community of property was subject to complete separation of property. The accrual system was therefore introduced by the Matrimonial Property Act to ensure fairness in respect of the division of assets upon divorce. However, the legislature added section 7(3) to (6) to the Divorce Act due to the non-regular implementation of the accrual system.[9]
1.3 RESEARCH QUESTION
This research aims to provide an answer to the following question:
In South African law, what is the approach to gender equality in marriages, where a spouse directly or indirectly contributes to the marriage’s growth?
What are the implications of depriving pre-1984 marriages from the benefits of the accrual system?
Is it fair to discriminate against these marriages from those that happened before the accrual system was implemented?
1.4 HYPOTHESIS
The exclusion of pre-1984 marriages from the accrual system may result in inequitable asset distribution upon divorce or death, and there is growing recognition of the need for greater protection and rights for spouses who contributed to the growth of their partner’s estate during the marriage, even in the absence of a formal accrual system.
1.5 RESEARCH METHODOLOGY
In this research I will use a variety of legal journals, articles, academic papers, legislation, South African case law, discussion papers, projects, and textbooks to gather information about the history, development, and current legal principles and positions governing marriage and the advantages and disadvantages of different matrimonial property systems in South Africa.
1.6 POINTS OF DEPARTURE AND ASSUMPTIONS
The assumptions underlying this research include the concept that public attitudes toward marriage and property rights have evolved throughout history, which has had an impact on legal interpretations and changes.
Moreover, it is thought that the legal system that governs marital property rights needs be clearer and more directed to promote justice and equity for all parties. The research presents a different perspective of marriages out of the community of property without the accrual system as a static legal regime, highlighting its dynamic nature and possibility for transformation to fit current needs and ideals.
CHAPTER 2: THE TYPES OF MARITAL REGIMES IN south africa PRE -POST 1984
2 INTRODUCTION
According to Gillian L, ‘The Roman-Dutch legal system is still used in South Africa, and it recognises that parties entering a marriage may choose out of the default matrimonial property system signing an antenuptial contract.’[10] Spouses that got married before 1984 had not have many options to choose from. They only had marriage in community of property with marital power. On the 1st of November 1984 the Matrimonial Property Act 88 of 1984 came into force and change things.[11]
2.1 BRIEF OVERVIEW OF MARRIAGES AND HOW THEY WERE FORMED
Historically marriages were traditional formed through customary practises for Black people which is still practiced today.[12] Spouses did not require a formal registration process under customary law marriages. Currently all marriages in South Africa are in community of property, as long there is no antenuptial contract that was drafted to exclude the accrual system.[13] The important decision of choosing the marital regime that will govern their marriage was and is still often overlooked by the parties before they get married. Therefore, their marriages end up being a marriage in community of property system by default. When spouses opt for a matrimonial property regime that is not community of property and does not include an accrual system, it is known as a complete separation of property.[14] This law typically impacts marriages of certain tribes of the marriages were not in community of property[15] as well as Black spouses who got married under the previous Black Administration Act 38 of 192[16] before the Matrimonial Property Act came into operation,[17] However, things have changed couples have the option to get married either under customary law, civil law, or religious law, with each having its own set of rules and regulations. These changes which came in 1 November 1984 with the introduction of the Matrimonial Property Act. Matrimonial Property Act, allowed couples to enter an antenuptial contract that excluded the accrual system, by allowing each spouse to keep their own assets and debts acquired before and during the marriage.[18] The accrual system has become a secondary default marital regime following the primary default regime of in community of property.[19] The first default form of marriage out of community of property involves the accrual system, whereas the second form does not involve the accrual system.[20] This was a significant change from the previous system of community of property, since it provided couples with greater authority over their personal assets and finance.
2.2 PRE 1984
2.2.1 Marriages in community of property
This is the most common and less complicated form of marriage in South Africa. When couples get married under this form of marriage, they agree to share everything. By sharing everything it means sharing assets and liabilities.[21] These include assets or liabilities that were acquire before or during the marriage.[22] Upon divorce each spouse is legally entitled to an undivided half share, should spouses not opt to enter an antenuptial contract.[23]
2.2.2 Marriages out of community of property
When couples enter into this type of marriage, they must sign an antenuptial contract (ANC) prior to getting married. The couples must register this contract in the deed’s office before a Notary. When getting married without community property, the spouses decide to maintain their own assets and debts separate, so whatever they owned or owed before the marriage will stay as part of their individual estates.[24] The partners may choose to incorporate the accrual in their agreement, allowing both partners to evenly split the increase in value in their separate assets during the marriage.
2.2.3 Antenuptial contracts
The accrual represents the growth in wealth for both spouses during the marriage, indicating the growth of their combined assets during that time. A couple can establish a marriage out of community of property by drawing up an antenuptial contract. When getting married under the accrual system, both spouses gain a specific entitlement to each other’s property in the event of a divorce.
2.2.4 Marriages out of community of property without the accrual
In this system, when couples get married, each spouse maintains a separate estate and any assets and debts they had before the marriage belong to their individual estates. In addition, the assets and debts obtained by each individual during the marriage are also considered part of their own separate estates. This system grants both spouses complete independence against claims from the creditors of the other spouse.
2.3 Abolition of Marital Power
The Matrimonial Property Act, 88 of 1984,[25] which commenced on 1 November 1984, abolished the marital power of a husband in marriages regarding all marriages entered into after the commencement date of the Act by introducing the accrual system.[26] Therefore the married couple can now choose to sign an antenuptial contract to eliminate the accrual system from their marital agreement.[27] If spouses do not actively do this, the accrual will come into effect. During a divorce, partners will divide any assets acquired during the marriage, including money or possessions.[28] The Act,[29] added certain measures to the divorce law in order to combat the possible adverse impacts of financial disparities in marriages outside of the community of property without accrual.[30] According to the MPA,[31] parties they have different choices available to conclude they marriages such as; in community of property, marriage out of community of property with the exclusion of the accrual system and marriage out of community of property with the accrual system.[32]
CHAPTER 3: DISTRIBUTION OF ASSETS UPON DIVORCE OF MARRIAGES ENTERED OUT COMMUNITY OF PROPERTY WITHOUT ACCRUAL
3 INTRODUCTION
Before Divorce Act 70 of 1979 came into effect on July 1, 1979, our law recognised four grounds for divorce, namely adultery, malicious desertion, incurable mental illness lasting at least seven years, and imprisonment for at least five years after having been declared a habitual criminal.[33]
The Divorce Act 70 of 1979 is the current act that regulates divorce and the consequences.[34] A court may dissolve a marriage by granting a decree of divorce, as stated in Section 3 of the Divorce Act. [35] The only grounds for granting such a decree are the irreversible dissolution of marriage mentioned in Section 4; the spouse’s mental illness mentioned in Section 5; the spouse’s permanent unconsciousness to the marriage discussed in Section 5.[36]
This act was introduced as a new legal discretion to redistribute the assets of couples who concluded their marriage before 1984 without the benefit of an accrual system or community of property after the commencement of the Matrimonial Property Act 88 of 1984 on 1 November 1984.[37]
3.1 GENDER EQUALITY
According to section 9(3) states in addition that the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, and marital status. South African matrimonial property law contains certain default statutory provisions which purport to apply to all marriages unless the spouses enter antenuptial contracts. However, the applicable rules often result in substantive gender inequality leaving women (and the children for whom they are responsible) destitute at the end of the marriage.[38] The test for determining whether the equality clause in section 9 has been breached was set out in Harksen v Lane NO. [39]
3.2 THE EFFECTS OF DIVORCE TO THOSE WHO CONCLUDED THEIR MARRIAGE BEFORE 1 NOVEMBER 1984 WITHOUT THE BENEFIT OF AN ACCRUAL SYSTEM OR COMMUNITY OF PROPERTY
To help couples who were married under community of property, a new section called redistribution of assets was added to the Divorce Act before the Matrimonial Property Act 88 of 1984 came into effect. Before the Act came into operation, when instituting a divorce action, a party to the proceedings could apply for a redistribution order in terms of section 7(3) of the Divorce Act. To receive a redistribution order, the Act specifies the requirements that need to be met. That the spouses requesting the order must have made a direct or indirect contribution to the maintenance or the growth of another spouse assets and the court needs to be satisfied that a redistribution order would be fair and reasonable considering such a contribution.[40].
Furthermore, all the parties that married out of community of property after 1 November 1984, the parties would not be able to use section 7(3).
3.3 ASSET REDISTRIBUTION AS A REMEDIAL MEASURE
In accordance with the provisions of section 3(1) of the Matrimonial Property Act,[41] It is now possible for a spouse who has made a direct or indirect contribution to their other spouse’s estate to request a redistribution of assets.[42] In the past, couples who had such marriages were not eligible for asset redistribution entitlements, compared to those who were married before the Matrimonial Property Act of 1984. It was viewed as a breach of the constitution and discriminatory. Under Section 7(3) of the Divorce Act, spouses who were married before 1984 may now claim the redistribution of assets, as per the Court’s judgment.
Post-1984 marriages had no right to redistribute assets upon divorce due to the previous norm, but now that has changed. When determining asset redistribution, the Court judgment stresses the importance of fairness and equity. In the next chapter we will discuss the case laws that the spouse completed their marriage before 1984 without the benefit of an accrual system or community of property.
CHAPTER 4: DISCUSSION OF THE CASE LAWS
4 INTRODUCTION
The Constitutional Court of South Africa recently made an important decision in two separate cases. Both cases focused on the constitutional validity of section 70(3) of the Divorce Act 1979.
4.4.1 Bezuidenhout v Bezuidenhout [2004] 4 All SA 487 (SCA); 2005 (2) SA 187 (SCA)
In the case of Bezuidenhout v Bezuidenhout the issue of marriages without the application of the accrual system was examined. The court held that although not having an accrual system throughout the marriage could have been reasonable at the time, it could result in an unfair outcome in the dissolution of the marriage. The case explained how important it is to consider the evolution of society and the possible disadvantages that spouses face in such marriages.[43]
4.4.2 EB (born S) v ER (born B); KG v Minister of Home Affairs 2024 (1) BCLR 16 (CC); 2024 (2) SA 1 (CC)
The Constitutional Court of South Africa recently made an important decision in these two separate cases. The issue of financial vulnerability and potential unfairness faced by poor spouses in such marriages was also highlighted in both cases. In the judgments it was held the importance of ensuring equality and protection for all parties, especially in situations where spouses sacrifice career opportunities or financial independence for the benefit of family. By examining these cases, we gain a deeper understanding of the challenges and consequences associated with marriages without the application of the accrual system.[44]
4.4.3 Harksen v Lane 1997 (11) BCLR 1489; 1998 (1) SA 300 (CC)
In this case, the Constitutional Court emphasized the importance of recognizing and evaluating the direct and indirect contribution of both spouses during the marriage. The court highlighted that a fair distribution of assets should consider factors such as financial contributions, homemaking and childcare responsibilities, and the sacrifices made by each spouse for the benefit of the marriage. This significant case further highlights the need for a more equitable approach in marriages out of community of property without accrual, ensuring that both spouses are properly recognised and protected.[45]
4.4.4 Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC)
The Constitutional Court upheld the customary norm of male primogeniture in Bhe v The Magistrate, Khayelitsha; Shibi v Sithole; and South African Human Rights Commission v President of the Republic of South Africa, which allows only an oldest male descendant or relative to succeed to the estate of a Black person, unconstitutional and invalid. Additionally, it also declared unconstitutional and invalid, section 23(7) of the Black Administration Act which unfairly discriminates against women and others with regard to the administration and distribution of black deceased estates.
5 CONCLUSION
To conclude, we can attest that the South African Constitution took the accountability to treat its citizens equally and fair. With this research we looked at what the Constitution of the Republic of South Africa says about section 7(3) of the Divorce Act and the Matrimonial Property Act, 88 of 1984. We looked at its enforceability in section 9 of the Constitution and the limitations it has when it is applied. Finally, the recent judgement of the case of EB (born S) v ER (born B); KG v Minister of Home Affairs 2024 will benefit the spouses that are married out of community of property with no accrual system. Many spouses could not retain the share of what they contributed to the marriage either directly or indirectly at divorce due to not have the remedy of a fair distribution.[46]. By declaring the section invalid and unconstitutional, the court has demonstrated the value of equality and fairness in the dissolution of marriages purpose.[47] Spouses who are married after 1984 with the exclusion of the accrual system or in terms of antenuptial contracts can now be able to get assets redistribution upon divorce if they wish to. This decision will come in hand for couples who are stuck in marriages to final seek advice from the divorce lawyers to navigate the new legal framework. South African law is evolving to better serve and protect the rights of all citizens.
Bibliography
Books
Heaton, South African Family Law
Heaton J and Kruger H, South African Family Law (4th edn, LexisNexis 2015)
Heaton, The Law of Divorce and Dissolution
Heaton J (ed), ‘The Law of Divorce and Dissolution’ The Law of Divorce and Dissolution of Life Partnerships in South Africa (Juta 2014)
Visser and Potgieter, Introduction to Family Law
Visser PJ and Potgieter JM, Introduction to Family Law, (2nd edn, Juta 1998)
Cases
Bezuidenhout v Bezuidenhout [2004] 4 All SA 487 (SCA); 2005 (2) SA 187 (SCA)
Bezuidenhout v Bezuidenhout [2004] 4 All SA 487 (SCA); 2005 (2) SA 187 (SCA)
Bhe and Others v Khayelitsha Magistrate and Others
Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC)
EB (born S) v ER (born B); KG v Minister of Home Affairs
EB (born S) v ER (born B); KG v Minister of Home Affairs 2024 (1) BCLR 16 (CC); 2024 (2) SA 1 (CC)
Harksen v Lane
Harksen v Lane 1997 (11) BCLR 1489; 1998 (1) SA 300 (CC)
Dissertation
Lowndes, ‘The Need for Flexible’
Gillian Claire Lowndes, ‘The Need for Flexible and Discretionary System of Marital Property Distribution in the South Africa Law of Divorce’ (LLM dissertation, University of South Africa 2014)
Internet sources
Pagel Schulenburg, ‘Understanding the Matrimonial Act: A Guide for Couples
in South Africa’ (Property Law, 20 July 2026) <
https://pagelschulenburg.co.za/understanding-the-matrimon0.1ial-property-act-a- guide-for-couples-in-south-africa/#:~:text=Types%20of%20Marital%20Regimes%20in,out%20of%20community%20of%20property > accessed 20 July 2026
Journal Articles
Heaton, ‘Striving for Substantive Gender Equality in Family Law’
Heaton J, ‘Striving for Substantive Gender Equality in Family Law: Selected Issues’ (2005) 21 SAJHR 547
Robinson, ‘Matrimonial Property Regimes and Damages’
Robinson JA, ‘Matrimonial Property Regimes and Damages: The Far Reaches of the South African Constitution’ (2007) 10(3) PELJ 70
Legislation
Constitution of the Republic of South Africa, 1996 (equality clause)
Divorce Act 70 of 1979
Matrimonial Property Act 88 of 1984
[1] Constitution of the Republic of South Africa, 1996.
[2] S 9 of the Constitution of the Republic of South Africa, 1996.
[3] Constitution of the Republic of South Africa, 1996, s 9(3).
[4] Constitution of the Republic of South Africa, 1996.
[5] EB (born S) v ER (born B); KG v Minister of Home Affairs 2024 (1) BCLR 16 (CC); 2024 (2) SA 1 (CC).
[6] Matrimonial Property Act 88 of 1984.
[7] Divorce Act 70 of 1979.
[8] Matrimonial Property Act 88 of 1984.
[9] Heaton J and Kruger H, South African Family Law (4th edn, LexisNexis 2015) 132.
[10] Gillian Claire Lowndes, ‘The Need for Flexible and Discretionary System of Marital Property Distribution in the South Africa Law of Divorce’ (LLM dissertation, University of South Africa 2014) 8.
[11] Heaton, South African family law 61.
[12] Recognition of Customary Marriages Act 120 of 1998.
[13] Visser PJ and Potgiete JM, Introduction to Family Law (2nd edn, Juta 1998) 94-95.
[14] Heaton, South African family law 90.
[15] Heaton J, ‘Striving for Substantive Gender Equality in Family Law: Selected Issues’ (2005) 21 SAJHR 547, 558.
[16] Black Administration Act 38 of 1927.
[17] Heaton, South African Family Law 92.
[18] Matrimonial Property Act 88 of 1984.
[19] S 10 of the Matrimonial Property Act 88 of 1984.
[20] Heaton J (ed), The Law of Divorce and Dissolution of Life Partnerships in South Africa (Juta 2014) 57-59.
[21] Heaton J, The Law of Divorce and Dissolution of Life Partnerships in South Africa 62.
[22] Heaton, South African family law 63.
[23] Divorce Act 70 of 1979.
[24] Pagel Schulenburg, ‘Understanding the Matrimonial Act: A Guide for Couples in South Africa’ (Property Law, 29 January 2024) < https://pagelschulenburg.co.za/understanding-the-matrimonial-property-act-a- guide-for-couples-in-south-africa/#:~:text=Types%20of%20Marital%20Regimes%20in,out%20of%20community%20of%20property > accessed 20 July 2026.
[25] Matrimonial Property Act 88 of 1984.
[26] S 11 of Matrimonial Property Act 88 of 1984.
[27] Robinson JA, ‘Matrimonial Property Regimes and Damages: The Far Reaches of the South Africa Constitution’ (2007) 10(3) PELJ 70 144.
[28] Robinson JA, ‘Matrimonial Property Regimes and Damages.
[29] S 36 of Matrimonial Property Act 88 of 1984.
[30] Divorce Act 70 of 1979, s 7(3)-(4).
[31] MPA.
[32] Heaton, South African family law 90.
[33] Heaton, South African family law 119.
[34] Divorce Act 70 of 1979, s 4(1).
[35] Divorce Act 70 of 1979, s 4(1).
[36] Heaton, South African family law 119.
[37] Matrimonial Property Act 88 of 1984.
[38] Heaton “Striving for gender equality” 547.
[39] Harksen v Lane 1997 (11) BCLR 1489; 1998 (1) SA 300 (CC).
[40] Divorce Act 70 of 1979, s 7(3)-(4).
[41] Matrimonial Property Act 88 of 1984.
[42] Divorce Act 70 of 1979.
[43] Bezuidenhout v Bezuidenhout [2004] 4 All SA 487 (SCA); 2005 (2) SA 187 (SCA).
[44] EB (born S) v ER (born B); KG v Minister of Home Affairs 2024 (1) BCLR 16 (CC); 2024 (2) SA 1 (CC).
[45] Harksen v Lane 1997.
[46] Heaton South African family law 136.
[47] Heaton South African family law 137.
