Big change for marriage and divorce in South Africa – what comes next

 ·3 Jun 2022

In a judgment that was handed down by the North Gauteng High Court on 11 May 2022, a portion of the Divorce Act was declared unconstitutional.

Social media was subsequently abuzz with articles relating to the different legal principles, interpretations, and professional or personal opinions. However, the biggest talking point centres around whether the section in question is immediately ‘invalid’, says Isabel van den Ende, an associate at Barnard Attorneys.

“High Courts have the authority to declare an Act, or a Section included in an Act unconstitutional. But this does not mean that it is immediately enforceable. The Constitutional Court of South Africa first needs to make a final decision,” she said.

Van den Ende pointed to Section 172 of the Constitution which states that Constitutional Court makes the final decision on whether an act of parliament is constitutional, and it must confirm any order of invalidity made by the Supreme Court of Appeal, the High Court of South Africa, or a court of similar status before that order has any force.

“In this current matter, an application has already been made to the Constitutional Court for the judgment to be confirmed. If the judgement is indeed confirmed and rubberstamped by the Constitutional Court, it will have the effect that s 7(3)(a) of the Divorce Act is unconstitutional and invalid to the extent that it limits the operation of s 7(3)(a) to marriages out of community of property ‘entered into’ before the commencement of the Matrimonial Property Act, 1984.

“It will only be in effect once the Constitutional Court has formally made the confirmation,” she said.

Why the ruling is important 

In its ruling, the North Gauteng High Court declared a section of the Divorce Act unconstitutional on the grounds that it was discriminatory towards women.

The section barred those married out of community of property and without the accrual system, from benefiting, on divorce, from what they might have contributed to the marriage.

Before 1984, South Africa had only two marriage regimes: in community of property, which meant the couple shared all assets and debts; and out of community of property, which meant the couple’s assets and debts were separated.

But with the enactment of the Matrimonial Property Act (MPA) the concept of ‘accrual sharing’, or asset sharing, was introduced. A section was introduced to the Divorce Act to give judges discretion in the distribution of assets in marriages out of community of property which had been concluded before the enactment of the MPA, when the accrual regime did not exist.

But the Divorce Act does not allow a court to make any order regarding “redistribution of assets” for couples married out of community of property, without accrual, after 1984.

This left many people, mainly women, financially barren, even though they had contributed to the household and assisted their spouses to accumulate assets over the years.

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