Big shake up for marriages and divorces in South Africa

 ·17 Jun 2022

On 11 May 2022, the North Gauteng High Court declared Section 7(3)(a) of the Divorce Act inconsistent with the Constitution, with the ruling set to have major implications for marriages and divorces in South Africa.

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 after the Matrimonial Property Act came into effect on 1 November 1984.

This difference, the court said, amounts to unfair discrimination – particularly for economically disadvantaged people – and limits the operation of Section 7(3).

Section 7(3)(a) of the Divorce Act reads:

(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.

Why it’s important 

Notably, individuals who are married out of community of property without accrual, regardless of the content of a signed antenuptial contract, will now be able to ask the court for a redistribution of assets, said Kavita Kooverjee, attorney at Schoeman Law.

However, such an application is not an outright right, she said. “The onus will be on the individual spouse to prove that they directly or indirectly contributed to the other spouse’s estate when instituting Section 7(3). For example, they looked after the kids and the home while the other spouse’s estate grew, being the only breadwinner.”

And when a court hears such an application, a court will need to consider whether the spouse is entitled to a claim and, secondly, to what extent the claim may be held, Kooverjee said.

“Those who previously divorced with a similar contract entered into when they got married will now also be allowed to approach the court for relief. Still, again this will be dependent on many other factors.

“Nevertheless, this will be a massive relief for those who “walked away” from their marriages with nothing. This judgement also creates a balance for unfair marriage contracts, where people enter into marriages not knowing the unfair discrimination presented to them. The judgment also focused on the discrimination towards those coming from an economic disadvantage, especially women.”

Kooverjee added that this judgement will not affect any marriages entered into community of property.

“This will significantly impact marriages entered into with the accrual system, especially once the Constitutional Court confirms this judgment.”

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