For decades, the “No Accrual” clause in an Antenuptial Contract was the final word in South African divorce law. If you signed it, you were stuck with it. It didn’t matter if you stayed home to raise children while your spouse built a multi-million rand estate; on the day of divorce, you left with exactly what was in your name—often nothing.
The law called this “Freedom of Contract.” Most spouses called it a trap.
That era of “hard luck” is officially over.
The Death of the 1984 Cutoff
The legal landscape changed forever on 10 October 2023, when the Constitutional Court handed down its final judgment in the consolidated matter of EB v ER; KG v Minister of Home Affairs [2023] ZACC 32.
This ruling didn’t just appear out of nowhere. It was the culmination of a fierce legal battle that began in the Pretoria High Court with the Greyling case on 11 May 2022, and was later bolstered by the Supreme Court of Appeal on 24 November 2022.
The courts finally admitted what practitioners have known for years: it is unconstitutional to deny someone a fair share of matrimonial property simply because of a date on a calendar or a box they checked in an attorney’s office thirty years ago.
The Crux: Fairness Over “Fine Print”
The most important takeaway for any spouse currently facing a divorce is this: The court now has the power to look behind your ANC.
Even if your contract explicitly excludes the accrual system, the court has the judicial discretion to order a redistribution of assets. This is not about rewriting history; it is about recognizing contribution.
If you contributed to your spouse’s estate—whether by managing the household, raising the children, or saving them the cost of a nanny or administrator—you have a potential claim. The law now recognizes that household labor has a Rand value, and that value must be accounted for when the marriage ends.
Is Your Contract Still Bulletproof?
Probably not. If the enforcement of your “No Accrual” contract leads to a result that is patently unfair and inequitable, the door to the courtroom is now wide open.
This ruling has leveled the playing field, ensuring that “contractual freedom” can no longer be used as a shield for financial exploitation.