EB (born S) v. ER (born B) N.O and Others; KG v. Minister of Home Affairs and Others

Nature of the Case

Both cases concerned the constitutional validity of section 7(3) of the 1979 Divorce Act, which provided differing financial protections regarding dissolution of different types of marriages in South Africa. In each case, the wife who brought the constitutional challenge was the plaintiff in divorce proceedings in the High Court. In EB (Born S) v. ER (Born B) N.O and Others, the court ruled on the absence of a redistribution remedy for assets where the marriage is terminated by death rather than divorce. In KG v. Minister of Home Affairs and Others, the court ruled on the absence of a redistribution remedy where the marriage is entered into on or after 1 November 1984.

Enforcement of the Decision and Outcomes

In issuing their decision in October 2023, the Constitutional Court suspended the order for two years and gave MPs in South Africa a two-year deadline to 1) fix the issues in the Divorce Act according to the Court’s decision, and 2) to pay the two women at the heart of the consolidated cases. In the interim, the Matrimonial Property Act and section 7(3) of the Divorce Act will apply to marriages dissolved by death, and a party to a new marriage under KG will be able to apply for the same redistribution order. As of January 2024, the advisory committee of the South African Law Reform Commission Project 100E was additionally reviewing other laws that deal with matrimonial property regimes to make recommendations that would further expand the Constitutional Court’s efforts.

Significance of the Case

The case is significant because it represents the Constitutional Court ordering changes to the Divorce Act in order to make the divorce process more considerate of equitable asset distribution. The decision will empower the courts to consider the entirety of a spouse’s contributions—both financial and non-financial—when dividing assets during a divorce. The judgment provides financial relief and assurance to spouses whose marriages end without accrual of property, regardless of when the parties were married or the nature of the separation. Additionally, the judgment will benefit spouses in Muslim marriages out of community of property without accrual who can now apply for a redistribution order to transfer assets. The decision highlights inequalities within marriage and within dissolution of marriage, particularly where the marriage contract or distribution of property may have been influenced by a familial power dynamic.

For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.