What Happens to an ANC When a Marriage Ends?

Understanding the Constitutional Court’s ruling in EB and how matrimonial property is treated upon death compared to divorce.

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A marriage can only end in two ways: divorce or death. Historically, the law provided certain financial remedies for spouses going through a divorce, but withheld those same remedies from surviving spouses when a marriage ended in death. The Constitutional Court recently declared this distinction unconstitutional.

The Legal Question in EB v ER

In EB [2023] ZACC 32, a wife married out of community of property instituted divorce proceedings and claimed a redistribution of assets under Section 7(3) of the Divorce Act[cite: 3]. Before the divorce was finalized, her husband passed away[cite: 3]. The executor of his estate argued that her redistribution claim died with him, because the Divorce Act only empowered a court "granting a decree of divorce" to redistribute assets[cite: 3].

What the Constitutional Court Decided

The Constitutional Court ruled that excluding marriages dissolved by death from the redistribution remedy was unconstitutional[cite: 3]. The Court found that this differentiation lacked any rational connection to a legitimate government purpose, thereby violating Section 9(1) of the Constitution (the right to equal protection before the law)[cite: 3].

The underlying purpose of the redistribution remedy is to prevent the hardship of an economically disadvantaged spouse who contributed to the estate of the wealthier spouse[cite: 3]. This hardship exists regardless of whether the marriage ends by divorce or by the death of the wealthier spouse[cite: 3].

🏛️ The Legal Remedy

The Constitutional Court ordered an interim reading-in to the Matrimonial Property Act (as Section 36A), empowering courts to entertain applications for asset redistribution against a deceased spouse's estate, treating death identically to divorce for this purpose[cite: 3].

What This Means for Couples

⚠️ What This Case Does Not Mean

This does not mean a redistribution claim automatically supersedes a Will. In assessing a claim against a deceased estate, the court must look at the surviving spouse's existing means, including what they stand to inherit from the deceased[cite: 3]. If the inheritance already covers their fair share, the court is unlikely to grant further redistribution[cite: 3].