Some important changes in the world of divorce law

Hannah Wilson, Simplifi Law, discusses how the constitutional court's recent judgement on the EB v ER and KG judgement changes the world of divorce law in South Africa.

A couple getting a divorce.

The family law fraternity (divorce lawyers in particular) are all a-buzz with the Constitutional Court’s recent judgement in the case of EB v ER and Others; KG v Minister of Home Affairs and Others.

For any aspiring law geeks among you, the full judgement penned by Justice Rogers is well worth a read, but as it stretches to a lengthy 72 pages, I thought you may appreciate something a little punchier.

What’s it all about?

The nub of the issue is essentially this:

In the past, wealthy people getting married would often try to safeguard their assets against divorce by insisting on an antenuptial contract (or prenup) stipulating that the marriage would be out of community of property and would exclude the accrual system. For the sake of simplicity let’s call this a “No Share ANC”.

Effectively a No Share ANC stipulates “what’s mine is mine, what’s yours is yours (‘til death or divorce do us part) and the fact that we’re getting married for a bit in between isn’t going to change that”.

Typically, with a No Share ANC, the wealthier spouse (let’s call them No Share Sherlock) slept comfortably at night secure in the knowledge that when the marriage ends (and let’s face it, all marriages come to an end at some point, even if only because eventually somebody dies) they won’t have to hand over any assets to their former spouse (or their spouse’s heirs, for that matter).

Since the EB v ER and KG judgement things have changed – and No Share Sherlock should now be aware that there is a possibility that some assets will be “redistributed”. Effectively, the recent Constitutional Court judgement has resulted in a change in the law – such that a court is now empowered to order No Share Sherlock to transfer a portion of his/her assets to his/her former spouse, even though they both signed a No Share ANC.

The rands and cents

How much might No Share Sherlock have to pay? you ask. The amount that the court deems “just and equitable” in the circumstances, is the answer. While this may seem a bit vague and unsatisfactory, one should take (some) comfort from the fact that, at least in principle, it shouldn’t be a totally arbitrary award. The various factors a court will take into consideration are dealt with extensively in the full judgement (so you might have to read it after all, sorry!).

Among other things, the court will need to be satisfied that No Share Sherlock’s soon-to-be ex-spouse has contributed (monetary or otherwise) towards the accumulated assets they now want to share.

Bottom line

In a nutshell, what the EB v ER and KG judgement does, is to sound the warning for those who are married or getting married: they are in for a financial partnership of sorts, whether they like it or not.

What do the critics say? (Extra reading for over-achievers)

The conservative view is that the judgement:

Undermines established legal principles like freedom of contract, the sanctity of contract and the established legal principle of “pacta sunt servanda” (a Latin term which means that contracts must be honoured).

A married couple in the process of getting a divorce. Wife seems upset.
The liberal view is that the judgement is a triumph for our constitutional democracy, in that it develops our law by empowering courts to promote substantive gender equality.

Fails to respect a couple’s right autonomously to choose their preferred matrimonial regime and seeks paternalistically to impose a concept of “forced sharing”.
Has the effect of promoting uncertainty about the ultimate potential economic consequences of marriage.
Will open the floodgates to a tsunami of litigated divorces, initiated by disgruntled spouses keen to see whether they can persuade a court to exercise this newfound discretion in their favour.
The liberal view is that the judgement is a triumph for our constitutional democracy, in that it develops our law by empowering courts to promote substantive gender equality.

The argument is that:

In many spheres of South African society there is still a very real and substantial power imbalance between men and women (largely because of still prevalent cultural and social norms).
As a result of their (still) generally lower economic and occupational status in society, women are still (usually) in a weaker bargaining position than men when it comes to negotiations regarding the economic consequences of marriage.
Because of this pervasive and continuing power imbalance, it is disingenuous to argue that the choice of marital regime always represents an exercise by both parties of their autonomous “free will”.

In the spirit of gender-sensitive realism and promoting substantive gender equality (rather than just lip service to a concept), courts should be (and now are) able to come to the assistance of parties who may otherwise find themselves victims of exploitative agreements that they cannot, with a straight face, be said to have “agreed freely” to.

No prizes for guessing which view I share. 

Hannah Wilson, Director, Simplifi Law
Hannah Wilson, Director, Simplifi Law