In its judgment dated October 10, 2023, the Constitutional Court of South Africa (the "Court") interpreted section 7(3) of South Africa's Divorce Act. The relevant provision allowed redistribution orders from one spouse to another in marriages that took place "out of the community of property," where marital assets are kept separate between the spouses at all times. Instead, the section introduced an "accrual system" for out-of-community property marriages, allowing spouses, in the event of the marriage's dissolution, to claim from the other spouse some of the assets accruing during the marriage as equitable relief. While the section has been lauded for protecting financially vulnerable spouses, especially those whose domestic and reproductive labor went unnoticed, the Court still invalidated the section to the extent that it excluded two groups from its coverage: (1) spouses who married out of the community of property without accrual after November 1, 1984 (the section's cut-off date) and whose marriage ended through divorce; and (2) spouses who married out of the community of property without accrual before or after November 1, 1984, and whose marriages ended through death.
The Court's judgment has been interpreted as extending the accrual system protections to these two groups. One commentator, Waheeda Amien (University of Cape Town), noted in her contribution to The Conversation: "The Court's judgment will provide much-needed financial relief to spouses whose marriages out of the community of property without accrual end, regardless of when the parties were married or how the marriage ended." The same piece also noted the impact of the judgment on Muslim marriages in South Africa: now, spouses in Muslim marriages that are out of community of property without accrual, too, will be able to ask courts to order the redistribution of marital assets in the event the marriage ends.