LOVE, LAW & ASSETS

On 10 October 2023 the Constitutional Court of South Africa, found that section 7(3)(a) of the Divorce Act No. 70 of 1979 is inconsistent with the constitution, and is therefore invalid. Section 7(3) of the Divorce Act enables a court, granting a decree of divorce in respect of a marriage out of community of property entered into before 1 November 1984, with a discretion to order the transfer of assets from one party to the other party as the court may deem just.
 
The applicant in the Constitutional Court case married her husband in 1988 in terms of an antenuptial contract (ANC) which excluded accrual. She contributed to the increase in her husband’s estate through non-financial contributions to the family home. Through the years her husband became very wealthy. She was prevented from pursuing a claim in terms of section 7(3) of the Divorce Act owing to the fact that her marriage was entered into after 1984. She then sought an order declaring section 7(3)(a) of the Divorce Act unconstitutional and invalid as it is not applicable to marriages entered into after 1 November 1984 which excludes community of property and accrual sharing. The Pretoria High Court declared the section unconstitutional, and the matter was referred to the Constitutional Court for confirmation.
 
The Constitutional Court recognized that the distinction between individuals who entered a marriage and an ANC contract before and after the onset of the Matrimonial Property Act (MPA) constitutes indirect discrimination on the grounds of gender in that the practical effect of the distinction between old ANC marriages and new ones is to prejudice women and benefit men disproportionally. However, an important aspect of the judgment that should be borne in mind is that such a distribution claim is not an automatic entitlement. The judgment highlighted that the remedy in terms of section 7(3) can only be granted if a court deems it reasonable and just having regard to the claimant’s contribution and other relevant factors; this includes the fact that parties concluded an ANC contract.  
 
The order granted by the Constitutional Court on 10 October 2023 is important to the South African society at large and was welcomed by many. It is likely that an amendment to the Divorce Act will be made in response to this decision.

Should you need any assistance with a divorce, please contact Rademeyer Attorneys at info@rademeyer.co.za.