Dependence, equal sharing, and the South African Constitution – recent developments in South African divorce law

Abstract A Bill is before the South African Parliament for amendment to the Divorce Act. The proposed amendments abolish date restrictions limiting application of its redistribution provisions. This results from the Constitutional Court order in EB (born S) v ER (born B}; KG v Minister of Home Affairs 2023 ZACC 32. The Commission for Gender argued that the amended Divorce Act provisions should provide clearer guidance to courts on how to exercise their discretion on redistribution, with equal division of assets being the starting point. However, the Constitutional Court declined to include the equal sharing guidance in its order. This article examines the EB; KG case as part of a discussion on the origins and historical application of Divorce Act ss 7(3-5). It discusses how the South African Constitution requires marriage law to respond to relationship-induced dependence so as not to render wives ‘poor and dependent’ when the marriage ends. The article shows that the influence of the Constitution has created a protective system of family law that responds well to gendered dependence and disadvantage. But does the Constitution require equal sharing of marital assets as a starting point when the marriage ends? The article examines the principle of equal sharing and argues that amendments to Divorce Act ss 7(3-5) should include explicit guidance providing a rebuttable equal sharing presumption.