Demystifying the Constitutional Court Judgment of KG v Minister of Home Affairs and Others [2023] ZACC 32

Understanding legal judgments can sometimes be a maze for many. In the realms of South African divorce law, the case EB (born S) v ER (born B) and Others and the KG v Minister of Home Affairs and Others [2023] ZACC 32 stand as paramount. It has brought about significant change and discussion in family law circles.

This article endeavours to break down this case, explaining its implications for South Africans and debunking some of the prevailing myths surrounding the judgment.

A Brief Overview of the Case

Before diving deep, let’s understand the crux of the matter.

The question of law determined by this case revolves around the Divorce Act 70 of 1979 and the redistribution remedy provided in section 7(3). The question arose whether certain exclusions in Section 7(3) were unconstitutional.

The Constitutional Court found that the distinction drawn in Section 7(3) between spouses who were married BEFORE 1 November 1984 and spouses who were married after this date was unconstitutional.

What is a Section 7(3) Claim

A section 7(3) claim is a claim for redistribution of assets between spouses married out of community of property without the accrual system. In other words, it allows one party to the marriage to claim that assets belonging to the other party be transferred to them.

For a Court to grant a claim in terms of Section 7(3), it must be satisfied that the claimant contributed directly or indirectly to the maintenance or the increase of the estate of their spouse during the marriage by rendering services, by the saving of expenses or in any other manner.

In addition to the contribution requirement mentioned in the previous paragraph, the Court must also take into account several factors:

• the existing means and obligations of the parties;
• any donations made between the parties during the marriage, or due in terms of the antenuptial contract
• any order made in terms of the patrimonial benefits in accordance with the laws of another state
• any other factor which the Court believes should be taken into account.

Thus, as is shown above, a redistribution claim in terms of Section 7(3) is not simply there for the asking, it is an onerous claim to prove and the Court must be satisfied that it is just and equitable to grant the relief before it will make such an order.

The Divorce Act and Section 7(3)

Prior to the KG judgment, Section 7(3) of the Divorce Act was only applicable to marriages out of community property with the exclusion of the accrual system entered into prior to 1 November 1984.

However, post the KG judgment, there was a significant amendment. The limiting words, “before the commencement of the Matrimonial Property Act, 1984”, were deleted from the legislation.

This pivotal change means that individuals who had signed an antenuptial contract excluding the accrual system after 1 November 1984 are now able to institute a redistribution claim in terms of Section 7(3).

Implications of the KG Judgment

The Constitutional Court, in the KG judgment, laid down a ground-breaking precedent. Essentially it opens up a long-established remedy in our law open to a whole new category of people: those married out of community of property excluding the accrual system after 1 November 1984.

These people are now given the right to institute a claim against their spouse as per Section 7(3) of the Divorce Act, 1979.

The KG judgment ensures that there is equality before the law for spouses married out of community of property excluding the accrual regardless of the date of their marriage.

Debunking Some Myths Surrounding the Judgment

• Myth: Antenuptial Contracts are Now Worthless

Reality: Section 7(3) claims, which were initially restricted to a particular group (those married before the Matrimonial Property Act), have now been made accessible to a wider demographic. Antenuptial contracts retain their value and significance.

One must remember that there are other legislative provisions in our law which also override the agreement of parties to a marriage, such as forfeiture of patrimonial benefits in terms of Section 9(1) of the Divorce Act (i.e that one party may forfeit the right to claim patrimonial benefits from the marriage to which they would otherwise be entitled).

• Myth: If you signed an ANC Excluding Accrual You Are Now Married in Community of Property

Reality: Those who signed an ANC excluding the accrual aren’t automatically deemed as being married in community of property. They can, however, claim the transfer of certain assets during a divorce under compelling circumstances dealt with above. As mentioned, a Section 7(3) Claim is not just for the asking – there are several important factors the Court must consider before entertaining such a claim.

• Myth: Courts No Longer Uphold Contractual Agreements

Reality: The courts are not disregarding contracts. Instead, they now interpret contracts in light of the updated provision, allowing all spouses married without accrual to claim under Section 7(3).

The practice of courts interpreting laws under Constitutional principles is well-established in our legal system, and there are numerous legislative measures that override a party’s unrestricted ability to determine their agreement terms.

• Myth: The KG Judgment Overturned South African Divorce Law

Reality: The KG judgment is not an anomaly. It’s an evolution, the latest in a series of judgments pushing for a more equitable South African family law system. These judgments are aligning South African law with global human rights and equality standards.

Concluding Thoughts

The KG judgment, along with the EB (born S) v ER (born B) case, has indeed brought about a transformation in South African divorce law. This is not something to fear, nor is it a harbinger of uncertainty and chaos, as some pundits seem to claim. KG does not derail our family law system, it simply evolves it to focus on equality and equitability rather than a slavish adherence to contract terms which may have been negotiated under very unfair circumstances.

KG champions the cause of equality, ensuring that legislative rights are safeguarded irrespective of when one entered into a marital contract.

Only time will tell what reforms will come to pass in terms of South African matrimonial property law. It is clear, however, from cases such as these that South Africa favours equality and fairness over traditionalism, and that we are slowly but surely starting to align ourselves with global standards of non-discrimination, fairness and dignity.

If you are uncertain about how the KG judgment affects you, please do not hesitate to contact us for more information.