DIVORCE: WHEN CONTRIBUTIONS COUNT MORE THAN CONTRACTS(LESSONS FROM ELM V LM)
In the evolving landscape of modern South African family law, disputes arising from marriages governed by antenuptial contracts excluding the accrual system increasingly force courts to confront the tension between contractual autonomy and lived economic reality. As more couples elect to be married out of community of property without accrual, courts are frequently asked to interpret the elusive scope of the redistribution remedy under section 7(3) of the Divorce Act. At the same time, the rise of long-term cohabitation before marriage has revived the relevance of universal partnership principles, which require courts to look beyond form and examine whether parties operated as a joint enterprise in substance. Against this backdrop, ELM v LM [5 December 2025] provides a clear and timely illustration of how these doctrines intersect, and how the law seeks to prevent serious inequity where one partner’s estate flourishes through the sustained, often invisible contributions of the other.
The background to this dispute is rooted in a relationship of deep integration, spanning more than thirty years. The parties met in the late 1980s when the Defendant, then a teenager with a limited educational background, began working in the Plaintiff’s legal practice as a receptionist and later a secretary. Their relationship developed over time, and by 1993 they were living together in Bryanston, functioning as a committed household. Six years later they married out of community of property without accrual. Throughout their relationship (both before and after the marriage) the Defendant’s life and work revolved around the Plaintiff. She assisted in his practice, adapted her working hours to care for his young son, managed the home, supervised domestic workers, prepared meals, oversaw maintenance at both the Johannesburg and Leisure Bay homes, and provided ongoing personal support. Even in the Plaintiff’s hobbies, particularly skydiving, she played an active role by accompanying him to drop zones and packing his parachutes.
While her contributions were substantial, the Defendant’s remuneration remained minimal. In the early years she was paid in cash to cover basic utilities. When her salary eventually reached R15 000 per month, the bulk of it was directed toward household expenses for both properties. By contrast, the Plaintiff’s financial fortunes improved dramatically. After a sequestration during the early 1990s, he rebuilt his legal practice, took up profitable investments and accumulated significant assets. These included properties in Johannesburg, Leisure Bay and Simons Town; a collection of artwork by well-known South African artists; gold coins; luxury vehicles; and benefits from a family trust. The couple lived a lifestyle consistent with this wealth: travel, fine dining, and high-value assets were regular features of their shared life.
Central to the dispute was the Portobello property in Leisure Bay, where the Defendant’s parents resided. Her parents had contributed the majority of the purchase price, with the Plaintiff adding R207 000 as a gift in appreciation for her care of them. At his insistence, the property was registered solely in her name. After the separation in 2023, tensions escalated when the Defendant removed furniture from another jointly-owned Leisure Bay property, prompting the Plaintiff to lay criminal charges and launch High Court proceedings for the return of each item.
The court’s legal analysis drew heavily from developments in both redistribution and universal partnership jurisprudence. Following EB v ER, it is settled that section 7(3) applies to spouses married without accrual after 1984, and the enquiry focuses on whether the spouse seeking redistribution contributed directly or indirectly to the maintenance or increase of the other’s estate. Earlier authority, particularly Beaumont v Beaumont, confirms that indirect contributions, those that support the household, care for children, sustain the family structure and free the other spouse to accumulate wealth, fall squarely within the ambit of section 7(4). The law does not require the claimant to prove extraordinary contributions; ordinary domestic responsibilities, performed consistently over time, are sufficient.
In addition to the statutory framework, the court considered whether the six years of pre-marital cohabitation formed part of a universal partnership. Relying on Ponelat v Schrepfer, the court assessed whether the parties had combined resources, acted for their mutual benefit, and pursued a joint enterprise aimed at improving their common financial position. The Defendant’s evidence on these points was strong: they shared a home, expenses, daily routines, and responsibilities; she contributed labour and childcare; and both parties functioned as a unified domestic and economic unit. This period of cohabitation therefore strengthened the foundation for redistribution by establishing that the Defendant’s contributions pre-dated the marriage and materially assisted the Plaintiff in rebuilding his estate after sequestration.
When applying these principles to the facts, the court accepted the Defendant’s evidence as clear and credible, and treated the Plaintiff’s financial disclosure with caution, noting inconsistencies regarding the value of his art collection, trust benefits and movable assets. The Defendant’s contributions, ranging from childcare and household management to the payment of municipal accounts, were found to be substantial and continuous. Her limited earning capacity at age 58, absence of retirement savings, and lack of independent assets placed her in a precarious position at the end of a relationship that had consumed her adult life. The Plaintiff, meanwhile, retained access to significant assets and remained financially secure despite being retired.
Taking into account the duration of the relationship, the Defendant’s contributions, the coexistence of a universal partnership prior to the marriage, the growth of the Plaintiff’s estate, the disparity between the parties’ financial positions, and the lifestyle they had enjoyed, the court concluded that redistribution was not only justified but necessary to prevent manifest unfairness. A 40% share of the Plaintiff’s net estate was therefore awarded to the Defendant, together with rehabilitative maintenance of R20 000 per month for twelve months to facilitate a clean break while still providing temporary support. The Defendant retained the Portobello property, and the Plaintiff was ordered to pay the costs of the counterclaim.
This case illustrates that marriages cannot be evaluated solely by reference to their formal financial structures. Section 7(3) and the principles of universal partnership empower courts to recognise the economic reality of relationships in which one spouse’s wealth is built through the significant yet often invisible contributions of the other. The judgment underscores the court’s willingness to intervene where fairness demands it, ensuring that the end of a long-term partnership does not leave a devoted spouse financially stranded.
Written by Alexis van Eeghem
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