Long Relationships, Short Protection? How EM v LM 2025 (KZN) Treats Cohabitation, Universal Partnerships and Redistribution
EM v LM 2025 (KZN) shows how long cohabitation and a universal partnership can support a redistribution order under section 7(3) in an out‑of‑community marriage.
Written by Roy Bregman, admitted attorney with over 51 years’ experience in South African family and matrimonial property law.
Key Takeaways
Introduction: Can Long Relationships Justify Redistribution?
EM v LM 2025 (KZN) is a High Court decision that applies the Constitutional Court’s judgment in EB v ER to a long marriage out of community of property without accrual and gives rich guidance on redistribution and maintenance under section 7 of the Divorce Act. The case is noteworthy because the court also treated partnership and pre‑marriage cohabitation as part of a universal partnership, and regarded that period as relevant to whether the wife had contributed to the growth of the husband’s estate.
The judgment illustrates how South African courts weigh direct and indirect contributions, the duration of a relationship, and the financial vulnerability of a spouse who devoted her adult life to the marriage when deciding whether a redistribution order is “just and equitable”.
Legal Framework: Section 7 and Universal Partnerships
How does section 7(3) work after EB v ER?
The parties were married out of community of property without accrual after 1984, which previously excluded them from redistribution, but the court held that EB v ER now permits section 7(3) redistribution in such marriages. Section 7(4) requires the court to be satisfied that it is just and equitable to order a transfer because the claimant spouse contributed directly or indirectly to the maintenance or increase of the other spouse’s estate during the marriage, including through services or saving expenses.
Section 7(5) then directs the court to consider, among other things, the parties’ means and obligations, donations between them, and “any other factor” the court considers relevant. In EM v LM, those “other factors” included a long period of pre‑marital cohabitation, the existence of a universal partnership, the wife’s age and employability, the husband’s incomplete asset disclosure and his conduct.
Section 7(2): Maintenance
For maintenance, section 7(2) requires the court to consider the parties’ means, earning capacities, needs, ages, the duration of the marriage, standard of living, relevant conduct and any redistribution order. The judge stressed that these factors must be applied to the actual facts and rejected the notion that the earlier Full Court decision in AV v CV mechanically controlled the outcome; that case turned on very different facts, including the wife’s stronger asset position and rehabilitative prospects.
Facts of EM v LM: A 30‑Year Relationship
Relationship history and contributions
The parties began their relationship in the early 1990s, lived together as husband and wife from 1993, and married in 1999 out of community of property without accrual; they separated only in 2023, after roughly 30 years together. The wife started working for the husband as a receptionist/secretary at age 18, later working in his legal practice and related businesses, and for years was with him “24/7”, both at work and at home.
How did the wife contribute before and during the marriage?
Her evidence, largely accepted, was that she:
What did the husband’s estate look like?
By contrast, he built up substantial assets over the decades, including high‑value properties, gold coins, investments and a family trust structure, while she reached age 58 with no pension, little in her own name and dependent on Rule 43 maintenance and her sister’s support.
Asset structure and disclosure
The husband claimed that his only real asset was the Barracuda Drive property bought at auction for R500 000, but he conceded that there was a family trust owning properties (including the home where he lived) and that he was a beneficiary of that trust. The court found that there had not been full disclosure of his assets, particularly in relation to the trust, paintings and other investments, while the wife had fully disclosed her modest position.
The Portobello property, registered in her name, had been funded largely by her parents (about R800 000), with the husband contributing roughly R200 000 as a “gift” to her for caring for them; the court accepted that this asset was effectively her parents’ and that the debt to them remained.
The Court’s Approach to Redistribution and Maintenance
Why did the court recognise a universal partnership?
Applying Beaumont v Beaumont, the court reaffirmed that ordinary household and child‑care duties count as indirect contributions to the other spouse’s estate for purposes of section 7(4). It held that the wife’s domestic care, emotional support, management of household expenses and assistance in his hobbies and business endeavours all contributed to the growth and maintenance of his estate.
Crucially, the court considered the six‑year period before the marriage, when the parties cohabited as husband and wife, as part of a universal partnership under Ponelat v Schrepfer and related cases. It held that the universal partnership requirements were met (each contributing, joint benefit, common profit motive) and that this period was relevant to the redistribution enquiry because she had already been contributing to the estate then.
Maintenance: clean break and rehabilitative support
On maintenance, the court accepted that the wife had established a need for support, given her age, limited formal qualifications, poor employment prospects and lack of assets compared to the husband’s significantly larger estate. However, balancing their ages and the desirability of finality, the judge favoured a “clean break” supported by a substantial redistribution and time‑limited rehabilitative maintenance rather than lifelong maintenance.
Outcome: 40% redistribution and 12 months’ maintenance
The court ordered:
In reaching the 40% figure, the judge stressed the lengthy relationship (over 30 years), her continuous support and sacrifices, the growth of his estate during that period, his incomplete disclosure, and his harsh conduct after separation (including criminal charges and civil proceedings about furniture).
Practical Lessons for Spouses and Practitioners
EM v LM confirms that after EB v ER, spouses married out of community without accrual can achieve meaningful economic redress through section 7(3), particularly where there is a long‑term relationship and marked financial vulnerability on one side. It also shows that pre‑marriage cohabitation, when it amounts to a universal partnership, can be factored into the redistribution analysis, effectively extending the “relationship period” beyond the formal marriage.
For practitioners, the case underscores the importance of leading detailed evidence of both domestic and financial contributions, exploring universal partnership arguments, and probing incomplete disclosure and trust structures when seeking redistribution and rehabilitative maintenance.
FAQs
Q1: Can I get a redistribution order if I am married out of community of property without accrual?
Yes, after EB v ER and cases like EM v LM, courts can grant redistribution orders under section 7(3) even where spouses married out of community without accrual, if the requirements are met.
Q2: Does living together before marriage help my claim?
It can. If the pre‑marriage cohabitation amounts to a universal partnership, courts may take that period into account when deciding whether redistribution is just and equitable.
Q3: Do housework and supporting my spouse’s career count as contributions?
Yes. Ordinary household, childcare and supportive roles can be recognised as indirect contributions that justify redistribution, especially over a long relationship.
Q4: Will I receive maintenance for life?
Not necessarily. Courts often prefer a clean break, using a once‑off redistribution plus rehabilitative maintenance for a limited period, depending on age, needs, assets and earning capacity.
Call to action
If you are in a long relationship or marriage where most assets stand in your spouse’s name and you are worried about your financial security in a divorce, you do not have to face it alone. Contact Bregman Moodley Attorneys to arrange a consultation so that your contributions can be properly assessed and a tailored strategy can be developed to protect your share of the estate.