Court ruling has major implications for divorcing couples married out of community of property

The Pretoria High Court has asked the Constitutional Court to confirm an order that will have significant implications for how assets are redistributed when couples who are married out of community get divorced.

In a judgment handed down on 11 May, the court declared that section 7(3)(a) of the Divorce Act is inconsistent with the Constitution and invalid to the extent that it limits the operation of section 7(3) of the Act to marriages out of community of property that were entered into before the Matrimonial Property Act took effect on 1 November 1984.

The ruling means that individuals married out of community of property without accrual will be entitled to claim a redistribution of assets despite what their signed antenuptial contract may provide, said Shani van Niekerk, a senior associate at Adams & Adams, which appeared on behalf of the Pretoria Attorneys Association, which was admitted to the proceedings as a friend of the court.

Van Niekerk said such a redistribution claim would not be an automatic entitlement. A spouse instituting a section 7(3) claim would still have to prove their direct or indirect contributions made towards the estate of the other spouse to be successful.

The court hearing the application would not only have to decide whether the spouse was entitled to a claim, but also the extent thereof, which may differ from matter to matter.

Natasha Truyens, senior associate and family law attorney at Barnard Incorporated, said that if the Constitutional Court confirms the order, “it will have a significant and compelling effect on many marriages in South Africa”.

The application was brought by a woman who married out of community of property, excluding the accrual system, in March 1988. The respondents in the case were the Minister of Home Affairs, the Minister of Justice and Constitutional Development, and her husband. The application was not opposed.

She contended that the “limited and exclusionary” application of section 7(3)(a) of the Divorce Act constitutes unfair discrimination as prohibited by section 9(3) of the Constitution and a limitation of the right to equality.

Discrimination based on the date of the marriage

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

“A court granting a decree of divorce in respect of a marriage out of community of property 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, subject to the provisions of subsection (4), (5) and (6), 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.”

Judge Elmarie van der Schyff took issue with the words “entered into before the commencement of the Matrimonial Property Act, 1984”, saying its phrasing was inconsistent with the Constitution and therefore invalid.

She said section 7(3)(a) differentiates between parties solely on the date of commencement of the Matrimonial Property Act (MPA) where:

• The parties could incorporate the accrual system into their marital property regime and for one or other reason, failed, or refrained from doing so; or
• The parties decided to exclude the accrual system.

“The only difference between these groups is speculative in that it can be argued that there might be members in the first group who did not know that they could incorporate the accrual system post the commencement of the MPA, while a deliberate choice underpinned the position of the second group,” Judge Van der Schyff said.

“Speculation aside, these groups are par excellence in a similar situation, and yet the one group is denied the benefit of section 7(3)(a) only on the basis of the date on which their marriage was concluded.

“The differentiation amounts to discrimination based on the date on which a marriage was concluded, because economically disadvantaged parties’ human dignity is impaired if they cannot approach the court to exercise the discretion provided for in section 7(3) of the Divorce Act.

“Unlike their counterparts whose marriages were concluded before 1 November 1984, economically disadvantaged parties who contributed to their spouses’ maintenance or the growth of their estates are vulnerable parties whose only recourse is to approach the court for maintenance. The unequal power relationship implicit to any maintenance claim, and the extent to which it renders an economically disadvantaged party vulnerable in these circumstances, speaks for itself,” she said.

Click here to download the judgment.