Section 7(3) of the Divorces Act declared unconstitutional:
On the 10th of October 2023, South Africa’s Apex Court confirmed that Section 7(3)(a) of the Divorce Act 70 of 1979 is inconsistent with the Constitution to the extent that it limits Section 7(3)’s application to marriages out of community of property concluded before the commencement of the Matrimonial Property Act.
The legal proceedings were initiated through two separate cases, namely CCT 364/21 (initiated by “Mrs B”) and CCT 158/22 (initiated by “Mrs G”). In both instances, the litigants sought confirmation of declarations asserting that section 7(3)(a) of the Divorce Act is inconsistent with the Constitution and, consequently, invalid.
In the case of CCT 364/21, the constitutional challenge centred on the argument that the section exclusively applied to marriages dissolved by divorce and failed to encompass those dissolved by death. Conversely, in CCT 158/22, the contention was that the section only applied to marriages entered into before 1 November 1984, constituting indirect discrimination, especially against women.
The effect of the Constitutional Court’s declaration
The Constitutional Court opted for a temporary suspension of the declaration of invalidity for 24 months. The Court further ordered that during this interim period, the Matrimonial Property Act, Act 88 of 1984 is to be read as to include a new provision, section 36A, which will allow parties to seek a redistribution order.
Spouses married out of community of property without the accrual after 1 November 1984 are therefore now able to seek a redistribution order if they are currently engaged in and/or intend to institute divorce proceedings.
Are antenuptial agreements pointless?
Addressing concerns over the validity of antenuptial contracts, the Constitution Court highlighted that Section 7(5)(d) of the Divorce Act allows the court to consider any other factors it deems relevant, including the terms of the antenuptial agreement excluding the accrual system.
The Constitutional Court’s decision does not render antenuptial agreements null and void. Instead, it provides a spouse with the chance to bring a redistribution claim before the Court. Automatic entitlement to asset redistribution is not granted solely because the marriage was concluded without the accrual system. To succeed in a claim under Section 7(3), the spouse initiating the process must substantiate their direct or indirect contributions to the other spouse’s estate.
The Divorce Court dealing with a Section 7(3) claim will need to determine the claimant’s entitlement and the extent of the redistribution based on just and equitable principles. The court will consider the claimant’s contributions and other relevant factors, such as the fact that an antenuptial contract was indeed concluded and the reasons therefor. This emphasises that a redistribution order will not be automatically granted. Each case will be evaluated individually, ensuring a fair and equitable outcome.
Conclusion:
In conclusion, the Constitutional Court’s recent decision marks a significant transformation in divorce proceedings, specifically impacting marriages entered into after 1 November 1984, without the accrual system. It is imperative to emphasize that the pursuit of a redistribution claim is not an automatic entitlement; rather, courts will meticulously evaluate numerous factors before granting such relief.
Importantly, the Constitutional Court’s ruling does not render antenuptial agreements obsolete. These legal instruments retain their significance in divorce cases, as courts are mandated to consider their existence when scrutinizing asset redistribution claims. This underscores the critical role that individual circumstances play in the pursuit of just and equitable outcomes.
Article by Ruben Maritz, Associate (LLB)
For more information, Ruben can be reached at ruben@rgprok.com or 044 601 9900. www.rgprok.co.za
