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
- Estate Planning is Crucial: The matrimonial property regime affects not only divorce but the administration of deceased estates.
- Surviving Spouses Have Recourse: A surviving spouse married out of community of property without accrual may now lodge a claim against the deceased spouse's estate if they contributed to its growth[cite: 3].
⚠️ 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].