BY SARAH BOND
On 11 May 2022 the Pretoria High Court declared section 7(3)(a) of the Divorce Act unconstitutional, to the extent that it amounts to unfair discrimination in relation to the division of assets in certain ‘out of community’ of property marriages.
Section 7(3) of the Divorce Act deals with the division of assets for couples married out of community of property. However, Section 7(3)(a) lays out different rules for marriages that took place either before or after the Matrimonial Property Act came into effect on 1 November 1984.
Section 7(3)(a) of the Divorce Act states as follows:
(3) A court granting a decree of divorce in respect of a marriage out of community of property—
(a) entered into before the commencement of the Matrimonial Property Act, 1984, in terms of an antenuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded may… on application by one of the parties to that marriage, in the absence of any agreement between them regarding the division of their assets, order that such assets, or such part of the assets, of the other party as the court may deem just be transferred to the first-mentioned party.
On 1 November 1984 the Matrimonial Property Act came into operation and the accrual system was introduced, subjecting marriages out of community of property, concluded on or after 1 November 1984 to the accrual system automatically, unless the accrual system was expressly excluded by an antenuptial contract. Section 7 of the Divorce Act was introduced to accommodate for the shortcomings by allowing spouses married out of community of property who were married prior to 1 November 1984 the opportunity to apply for an order for the redistribution of assets upon divorce.
This allowed spouses who did not have the opportunity to conclude a marriage with the application of the accrual system to apply for their fair share of the assets accumulated by the spouses during the marriage. This was especially important to protect and allow recourse to the economically disadvantaged spouse in the marriage, who may have contributed to the maintenance and growth of the other spouse’s estate while for example looking after the children and household while the other spouse accumulated a financially prosperous estate.
In the landmark decision made by the High Court last week, it was found that the wording of section 7(3) of the Divorce Act, “entered into before the commencement of the Matrimonial Property Act, 1984” was the main issue, in that it amounts to unfair discrimination by limiting the ability of the courts to make a redistribution order to those marriages out of community of property, only before 1 November 1984 and not to those marriages out of community of property concluded after this date.
In this case before the Pretoria High Court it was argued that the wife in the matter had been young and naïve when she married her husband and was pressurised into signing an antenuptial contract. It was stated that because she had entered the marriage after 1 November 1984 she was therefore prohibited from claiming a redistribution order upon divorce, despite her contribution to the marriage and the growth of her husband’s estate. The court therefore found the wording of section 7(3) inconsistent with the Constitution and therefore invalid, for being unfairly discriminatory.
The implications of this judgement would have far-reaching effects on the patrimonial consequences of marriages, in that anyone who, in anticipation of their marriage, concludes an antenuptial contract without accrual after 1 November 1984, can now (if the position is confirmed by the Constitutional Court) request the court to make an order for a redistribution of assets, thereby disregarding the content of their signed antenuptial contract, should the court consider it just and fair.
In terms of Section 167(5) of the Constitution, the Constitutional Court makes the final decision on whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the High Court of South Africa, or a court of similar status, before that order has any force. As such this matter will now be referred to the Constitutional Court for confirmation as to whether the wording of this section is in fact unconstitutional and therefore invalid or not. Should the position be confirmed by the Constitutional Court it will have a significant effect on marriages in South Africa.
16 MAY 2022