Authored By: Nolwazi Nyilika
University of Pretoria
1 Introduction
South African matrimonial property law has historically reflected social and economic inequalities between spouses. Although constitutional transformation has progressively challenged discriminatory aspects of the country’s family-law system, remnants of the former legal order continue to affect spouses whose marriages were concluded under older matrimonial property regimes.1 The Constitutional Court’s judgment in EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others provides an important example of the Constitution’s transformative effect on matrimonial property law.2
The two matters concerned the constitutionality of section 7(3) of the Divorce Act 70 of 1979. The provision permits a court, in specified circumstances, to order redistribution of assets between spouses married out of community of property. However, its operation excluded certain spouses from accessing this remedy, including spouses whose marriages were concluded on or after 1 November 1984 and spouses whose marriages were dissolved by death rather than divorce.3
This article argues that the judgment is significant not merely because it invalidated discriminatory aspects of section 7(3), but because it demonstrates how substantive equality can be used to dismantle historical economic inequalities within marriage. The decision also illustrates the tension between constitutional adjudication and legislative reform, particularly where the Court must provide immediate protection while leaving Parliament to develop a comprehensive statutory solution.4
2 Historical Context of Section 7(3)
To understand the importance of the judgment, it is necessary to consider the historical development of South African matrimonial property law. Before the introduction of the Matrimonial Property Act 88 of 1984, spouses who married out of community of property could, in appropriate circumstances, remain economically separate during the marriage. The introduction of section 7(3) of the Divorce Act created a limited mechanism through which a court could redistribute assets at divorce.5
The redistribution remedy was intended to address circumstances in which a strict application of the matrimonial property regime would produce an unjust result. In particular, the remedy could recognise the contributions made by a spouse to the marriage that were not necessarily reflected in formal ownership of property.6
However, the legislative framework contained historical date-based limitations. Section 7(3) applied differently depending on when the marriage was concluded. The result was that spouses in substantially similar economic circumstances could have different access to redistribution merely because their marriages fell on different sides of a legislative date.7
The Constitutional Court was therefore required to examine whether these distinctions remained constitutionally defensible in a constitutional democracy founded on equality and dignity. Several earlier decisions help to frame that inquiry.
2.1 Bezuidenhout v Bezuidenhout [2004] 4 All SA 487 (SCA); 2005 (2) SA 187 (SCA)
In Bezuidenhout v Bezuidenhout, the court examined the position of marriages without the application of the accrual system. The court held that, although the absence of an accrual system throughout the marriage could have been reasonable at the time, it could result in an unfair outcome upon 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.8
2.2 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 first (CCT 364/21) concerned a marriage dissolved by death, and the second (CCT 158/22) concerned a marriage concluded on or after 1 November 1984. Both cases highlighted the financial vulnerability and potential unfairness faced by poor spouses in such marriages. The judgments emphasised the importance of ensuring equality and protection for all parties, especially in situations where a spouse sacrifices career opportunities or financial independence for the benefit of the 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.9
2.3 Harksen v Lane 1997 (11) BCLR 1489 (CC); 1998 (1) SA 300 (CC)
In Harksen v Lane NO, the Constitutional Court set out the test for determining whether differentiation amounts to unfair discrimination under section 9 of the Constitution. The test asks whether a provision differentiates between people or categories of people, whether that differentiation amounts to discrimination, and, if so, whether the discrimination is unfair. The decision remains the Court’s foundational framework for equality analysis, and it underpins the approach taken in EB; KG.10
2.4 Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC)
In Bhe v The Magistrate, Khayelitsha; Shibi v Sithole; and South African Human Rights Commission v President of the Republic of South Africa, the Constitutional Court declared unconstitutional and invalid the customary norm of male primogeniture, which allowed only the oldest male descendant or relative to succeed to the estate of a Black person. The Court also declared unconstitutional and invalid section 23 of the Black Administration Act 38 of 1927, which unfairly discriminated against women and others in the administration and distribution of deceased Black estates. Although Bhe concerned succession rather than matrimonial property, it is relevant here because it shows the Court’s willingness to dismantle rules that entrenched gendered patterns of disadvantage.
3 The Constitutional Court’s Reasoning
The Court’s analysis was grounded in the constitutional guarantee of equality. Section 9(1) provides that everyone is equal before the law and has the right to equal protection and benefit of the law. Section 9(3) further prohibits unfair discrimination by the state on specified grounds, including gender.11
The Court recognised that the history of matrimonial property law could not be separated from the historical economic position of women. Marriage could produce forms of economic dependence in which one spouse, often the wife, contributed substantially to the household through unpaid domestic work while the other spouse accumulated assets and financial resources.12
This historical context is important because formal ownership does not necessarily reflect the actual contributions made during a marriage. A spouse may contribute through childcare, household management and support for the other spouse’s career without acquiring property in their own name.
The redistribution remedy was therefore capable of advancing substantive equality. It provided a mechanism through which courts could consider the actual contributions and circumstances of spouses rather than simply applying formal ownership rules.
The Court’s reasoning reflects its established approach to substantive equality. In Harksen v Lane NO, the Court explained that differentiation must be examined to determine whether it amounts to unfair discrimination.13 In Minister of Finance v Van Heerden 2004 (6) SA 121 (CC), the Court further developed the principle that substantive equality requires attention to patterns of disadvantage and the impact of legal rules on historically disadvantaged groups.
The Court in EB; KG applied these constitutional principles to matrimonial property. It found that the distinctions created by section 7(3) could not be justified merely by historical legislative choices. The fact that Parliament had selected a particular date did not, by itself, make the resulting discrimination constitutionally acceptable.
4 Death Versus Divorce: An Important Constitutional Distinction
One of the most significant aspects of EB is the Court’s consideration of the difference between dissolution of marriage by divorce and dissolution by death.
The Court found that the exclusion of death from section 7(3) created an unjustifiable limitation. Where a spouse had instituted divorce proceedings and sought redistribution, the death of the other spouse could extinguish the possibility of obtaining the remedy solely because of the timing of the death.14
This created a particularly troubling result. The surviving spouse’s entitlement could depend upon an event over which neither the spouse nor the court necessarily had control.
The Court therefore confirmed the High Court’s declaration that section 7(3) was unconstitutional to the extent that it failed to provide for marriages dissolved by death.15 The declaration of invalidity was suspended for 24 months to allow Parliament an opportunity to remedy the constitutional defect.16
5 Why the Judgment Matters for Gender Equality
The importance of the judgment extends beyond the technical interpretation of the Divorce Act. Matrimonial property law can have significant consequences for economic equality between women and men.
A marriage may involve substantial unpaid labour that contributes to the economic success of the household. If matrimonial property rules recognise only formal ownership, the spouse performing unpaid domestic and caregiving work may leave the marriage with substantially fewer assets despite having contributed significantly to the household.17
The redistribution remedy provides an opportunity for courts to consider these realities. In this sense, EB; KG demonstrates how constitutional equality can influence private law relationships.
The judgment therefore contributes to the broader constitutional project of dismantling legal rules that preserve historical patterns of disadvantage. It confirms that family law cannot be treated as an isolated area of private law immune from constitutional scrutiny.
6 Critical Evaluation
The judgment is commendable because it addresses an obvious weakness in a statutory scheme that had become increasingly difficult to justify in constitutional terms. The Court correctly recognised that legislative classifications based on historical dates can have unequal consequences and must be tested against the Constitution.
A particular strength of the decision is its recognition that matrimonial property law has real economic consequences. The Court did not approach the issue as a purely technical dispute concerning statutory interpretation. Instead, it considered the relationship between property, marriage and historical inequality.
The judgment nevertheless raises questions about the appropriate institutional role of the judiciary. Matrimonial property law involves complex policy choices concerning marriage, succession, property ownership and the distribution of wealth. Parliament is institutionally better positioned to undertake comprehensive legislative reform than a court deciding individual constitutional challenges.
The Constitutional Court addressed this concern by suspending the declaration of invalidity for 24 months and giving Parliament an opportunity to correct the defects.18 This approach respects the separation of powers while ensuring that unconstitutional legislation cannot remain permanently in force.
Another important issue is whether the eventual legislative reform should merely remove the discriminatory date restrictions or should provide clearer guidance concerning the exercise of redistribution discretion. A broad judicial discretion may protect flexibility, but uncertainty about how courts should exercise that discretion can itself produce inconsistent outcomes.
The judgment therefore represents an important constitutional intervention, but it should also be understood as part of a continuing process of legislative reform. Constitutional equality cannot be achieved solely through the removal of discriminatory provisions; the broader matrimonial property framework must also be capable of recognising the economic realities of modern marriage.
7 Conclusion
EB (born S) v ER (born B); KG v Minister of Home Affairs and Others demonstrates the transformative power of the Constitution in an area of law that has historically been shaped by unequal economic and gender relations. By declaring the relevant exclusions in section 7(3) unconstitutional, the Constitutional Court reaffirmed that matrimonial property law must comply with substantive equality.
The judgment is particularly significant because it recognises that the economic consequences of marriage cannot always be understood through formal ownership alone. Contributions made within marriage, including unpaid domestic and caregiving work, may have substantial economic value.
Ultimately, the decision illustrates that constitutional equality requires the law to respond to historical disadvantage while remaining sensitive to contemporary social realities. The judgment therefore represents an important step towards a more equitable matrimonial property regime, while also placing responsibility on Parliament to develop a coherent and constitutionally compliant legislative framework.
Footnote(S):
1 EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others [2023] ZACC 32; 2024 (1) BCLR 16 (CC); 2024 (2) SA 1 (CC).
2 EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others [2023].
3 Divorce Act 70 of 1979 s 7(3).
4 Section 7 (3).
5 Divorce Act 70 of 1979 s 7(3).
6 Divorce Act 70 of 1979 s 7(3).
7 Divorce Act 70 of 1979 s 7(3).
8 Bezuidenhout v Bezuidenhout [2004] 4 All SA 487 (SCA); 2005 (2) SA 187 (SCA).
9 EB (born S) v ER (born B); KG v Minister of Home Affairs 2024 (1) BCLR 16 (CC); 2024 (2) SA 1 (CC).
10 Harksen v Lane 1997.
11 Constitution of the Republic of South Africa, 1996 s 9(1) and (3).
12 EB (born S) v ER (born B); KG v Minister of Home Affairs 2024 (1) BCLR 16 (CC); 2024 (2) SA 1 (CC).
13 Harksen v Lane NO and Others 1998 (1) SA 300 (CC) paras 50–54.
14 EB (born S) v ER (born B).
15 EB (born S) v ER (born B).
16 EB (born S) v ER (born B).
17 Daniels v Campbell NO and Others 2004 (5) SA 331 (CC); Bhe and Others v Magistrate, Khayelitsha and Others 2005 (1) SA 580 (CC).
18 EB (born S) v ER (born B).
Bibliography
Books
- Heaton J and Kruger H, South African Family Law (4th edn, LexisNexis 2015)
- Heaton J (ed), ‘The Law of Divorce and Dissolution’ The Law of Divorce and Dissolution of Life Partnerships in South Africa (Juta 2014)
- 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)
- 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 2024 (1) BCLR 16 (CC); 2024 (2) SA 1 (CC)
- Harksen v Lane 1997 (11) BCLR 1489 (CC); 1998 (1) SA 300 (CC)
Dissertation
- Lowndes GC, ‘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) [URL to be re-checked and inserted] accessed 20 July 2026
Journal Articles
- Heaton J, ‘Striving for Substantive Gender Equality in Family Law: Selected Issues’ (2005) 21 SAJHR 547
- 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
- Divorce Act 70 of 1979
- Matrimonial Property Act 88 of 1984
