A recent judgment of the KwaZulu-Natal High Court serves as a stark reminder that fairness remains at the heart of South African divorce law — even where parties are married out of community of property and without accrual.
In a strongly worded decision, Judge Pieter Bezuidenhout rebuked a wealthy, retired attorney who sought to exit a marriage of more than 30 years with minimal financial responsibility towards his former wife. The court ultimately ordered him to transfer 40% of the net value of his estate to her, pay maintenance of R20,000 per month for one year, and cover all her legal costs.
The parties began cohabiting in 1993 and married in 1999. Their relationship endured for over three decades before breaking down in 2023. Although the marriage was concluded out of community of property and without accrual, the court was not persuaded that this contractual arrangement justified the outcome the husband proposed.
The husband’s position was that his wife should leave the marriage with nothing more than limited maintenance, while she shouldered her own — and even punitive — legal costs. The court found this stance to be fundamentally unfair.
Evidence before the court revealed that the wife began working for the husband when she was only 18 years old. Over time, she became deeply embedded in both his professional and personal life. She worked in his legal practice as a secretary, managed the household, cared for his children from a previous marriage, entertained clients, and supported his hobbies — including packing parachutes for his skydiving activities and accompanying him to drop zones.
Judge Bezuidenhout remarked that she had spent the prime years of her life supporting her husband in every sense.
Crucially, the court accepted her version that she was discouraged from maintaining independent financial freedom. She was allegedly discouraged from holding cash and repeatedly assured that she did not need a pension because her husband would “look after her”. By the time the marriage ended, she was 57 years old, unemployed, without savings, medical aid, or financial security, and reliant on her sister to fund her legal battle.
The husband, now 70, painted a very different picture. He argued that his wife was marketably skilled, exaggerated her financial need, and had been fully reimbursed for household expenses. He placed a modest value on assets such as paintings by well-known South African artists and downplayed the extent of his wealth, listing little more than cash, a few Krugerrands, and interests in trust-held property.
The court, however, was not persuaded. Judge Bezuidenhout repeatedly highlighted serious disclosure gaps, particularly in relation to trusts, companies, artwork, gold coins, and property structures that appeared designed to shield wealth from scrutiny. While the husband insisted he had made full disclosure, the court found his evidence wanting.
Redistribution remains possible — even without accrual
Importantly, the judgment reaffirmed a critical principle of South African divorce law: being married out of community of property and without accrual does not automatically exclude a redistribution claim under the Divorce Act.
It is now common cause that although parties may be married by antenuptial contract without the accrual system after 1984, a redistribution order can still be granted in terms of section 7(3) of the Divorce Act 70 of 1979. This principle was confirmed by the Constitutional Court in EB v ER N.O. and Others 2024 (2) SA (CC).
Relying on this authoritative precedent, Judge Bezuidenhout confirmed that where one spouse has contributed — whether directly or indirectly — to the maintenance or growth of the other spouse’s estate, the court is empowered to grant a redistribution that is just and equitable. The court also attached weight to the six years of pre-marital cohabitation, accepting that the parties functioned as life partners long before formalising their marriage.
While lifelong maintenance was not awarded, the court firmly rejected the notion that a spouse who devoted over three decades to supporting a marriage should walk away empty-handed.
This case stands as a powerful reminder that:
For spouses who sacrificed earning potential, independence, or long-term security in support of a partner, this judgment reinforces a crucial message: equity and justice remain central to divorce proceedings in South Africa.
Download the full judgment: E.L.M v L.M (9360/2022P) [2025] ZAKZPHC 127 (5 December 2025)
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