Divorce and Property Rights: A Win for Fairness

Divorce is never easy — emotionally, financially, or legally. But a recent ruling by the Mpumalanga High Court (Mbombela) has given many South Africans hope that fairness still matters when a marriage ends. The court’s decision allows a woman, married out of community of property without accrual, to claim a share of her husband’s estate — a move that could reshape divorce law in South Africa.

A Landmark Shift in the Law

For decades, many spouses — mostly women — who supported their partners emotionally, raised children, and helped grow family businesses found themselves with nothing after divorce. Under traditional “out of community of property without accrual” marriages, each party leaves with only what’s in their name.

But in this case, the wife argued that she had made non-financial contributions to her husband’s estate over nearly two decades — managing the family lodge, raising their children, and providing emotional and domestic support that enabled her husband’s business to thrive.

Her husband objected, claiming she had no legal right to any redistribution of assets. However, the court disagreed. Acting Judge SM Msibi allowed her to amend her divorce claim to include a redistribution order, citing the Constitutional Court’s judgment in EB v ER (2023) — a case that changed how South Africa views fairness in marriage.

The EB v ER Case: Recognizing Non-Financial Contributions

The EB v ER case declared part of the Marriages Act unconstitutional because it excluded spouses married out of community of property (without accrual) from claiming redistribution. The Constitutional Court found that this exclusion was discriminatory — especially against women — and contrary to the equality clause in the Bill of Rights.

The ruling allows courts to consider what is “just and equitable” when dividing property at divorce, including emotional labour, caregiving, and unpaid work. This means that even if a spouse wasn’t formally earning income or listed on property titles, their role in building the family’s wealth can now be legally recognized.

What This Means for Married Couples

This judgment does not automatically grant an equal split of assets. The contributing spouse still needs to prove their contribution — whether direct (financial) or indirect (through support, caregiving, or helping in a family business).

However, it opens the door for fairer outcomes, especially for spouses who sacrificed careers or earnings to sustain their families. It’s also a reminder for couples to revisit their antenuptial contracts and ensure both parties understand what “out of community of property” really means.

If you are married out of community of property without accrual, this ruling could impact your rights during divorce. It’s important to seek advice early — especially before signing or changing marital contracts.

The Human Side of the Law

At its heart, this case is about more than property — it’s about recognition and dignity. For years, many people (often women) felt invisible in the legal system when it came to the value of unpaid labour. The court’s ruling reinforces that justice must consider not just financial contributions, but the human effort behind a shared life.

Conclusion

While every divorce case is different, this ruling shows that South African law is evolving toward fairness. It reflects a growing understanding that marriages are partnerships — not just contracts. When one spouse sacrifices time, energy, and opportunity for the other, that contribution deserves to be acknowledged.

If you’re going through a divorce or considering your marital property regime, it’s wise to consult a family law specialist who can explain your rights and guide you toward a fair settlement.

Rudolf Buys & Associates Attorneys have extensive experience in family and matrimonial law. Our team can assist with divorce proceedings, antenuptial contracts, and asset distribution.

Contact us for confidential legal advice tailored to your situation.