The Constitutional Court’s judgments in two separate but interconnected cases have been described as a watershed in the realm of South African family law.
On 10 October, the Constitutional Court handed down judgment in two applications for confirmation of orders declaring section 7(3) of the Divorce Act invalid and unconstitutional.
The applications were brought in two separate cases: CCT 364/21 (brought by “Mrs B”) and CCT 158/22 (brought by “Mrs G”).
In both applications, the parties sought confirmation of declarations that section 7(3)(a) is inconsistent with the Constitution and accordingly invalid.
In CCT 364/21, the alleged ground of constitutional invalidity was that the section only applies to marriages dissolved by divorce and not also by death.
In CCT 158/22, the alleged ground of constitutional invalidity was that the section only applies to marriages entered before 1 November 1984 and not also to marriages concluded after that date. This was found to be indirectly discriminatory, particularly against women, The date 1 November 1984 is the commencement of the Matrimonial Property Act.
While the Constitutional Court upheld the High Court’s decision of constitutional invalidity, it temporarily suspended the declaration of invalidity for 24 months to allow Parliament to address the constitutional shortcomings. During this period, the MPA is to be read as including a new provision, section 36A, allowing for a redistribution remedy (modelled on section 7(3) of the Divorce Act) in the case of marriages dissolved by death.
According to the judgment, the interim provision will not affect deceased estates that have been finally wound up by the date of this order, nor will it affect the legal consequences of any act done or omission or fact existing before this order was made.
Effects on marriages
Bertus Preller, a family law and divorce law attorney at Maurice Phillips Wisenberg in Cape Town, says the interim measures mean that, pending legislative amendments, spouses in marriages concluded after 1 November 1984 can immediately seek relief through the courts for asset redistribution.
“This is a crucial step in providing immediate remedies for those who may be in the process of divorce proceedings or contemplating it,” Preller says.
He explains that, prior to the Constitutional Court’s ruling, spouses in such marriages were generally not entitled to any form of asset redistribution upon divorce, unlike their counterparts in marriages concluded before the commencement of the MPA. He says this was found to be indirectly discriminatory, particularly against women.
“The court’s judgment changes this by allowing for the possibility of asset redistribution based on what is ‘just and equitable’,” Preller says.
Shani van Niekerk, a senior associate at law firm Adams & Adams, says the court order has far-reaching effects on the patrimonial consequences of many marriages.
“Simply put, individuals married out of community of property without the accrual will now be entitled to claim a redistribution of assets despite the content of their signed antenuptial contract,” Van Niekerk says.
However, she adds that such a redistribution claim is not an automatic entitlement. According to the judgment, the remedy in terms of section 7(3) can be granted only if the court deems it equitable and just, having regard to the claimant’s contribution and other relevant factors.
“A spouse instituting a section 7(3) claim will still need to prove their direct or indirect contributions made towards the estate of the other spouse to be successful. The court hearing such a claim will then have to decide upon not only whether such a spouse is entitled to a claim, but also the extent thereof which may differ greatly from matter to matter,” Van Niekerk says.
The weight and validity of antenuptial agreements
During the court proceedings, Adams & Adams acted on behalf of the amicus curiae (friend of the court) represented by a team of advocates consisting of Sybrand Stadler, Sonica Mentz, and Adrian Thomson and lead by Liezl Haupt.
The amicus curiae raised concerns about the weight and validity of an antenuptial agreement should the Constitutional Court confirm the High Court decision.
Responding to the issue, the Constitutional Court stated that in terms of section 7(5)(d) of the Divorce Act, a court considering a redistribution claim can consider any other factor which should in the opinion of the court be considered.
Van Niekerk says the fact that the parties concluded an antenuptial contract excluding the accrual regime could and should be considered, “and the weight this factor should receive would, however, depend on the circumstances”.
Referring to South Africa’s international law obligations, the court noted that other jurisdictions – for example, England and Canada – have adopted this approach.
According to the leading England case (in which the fundamental test was encapsulated) quoted in the judgment, “the court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications, unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.
Choice and fairness
Addressing the issue of “choice”, the court noted that the mere availability of the accrual system at the time of marriage does not suffice as a justification for the discrimination.
“The court emphasised that choices in marital contracts are often influenced by various factors, including social pressures, power imbalances, and lack of access to legal advice, thereby rendering the ‘choice’ less than fully free or informed,” Preller says.
He says the judgments mark a significant step towards aligning South African family law with constitutional and international standards, ensuring fairer outcomes in divorce and marital dissolution cases.
“The decision acts as a catalyst for transformative change, compelling lawmakers, legal practitioners, policy analysts, and the broader society to re-examine and reformulate the manner in which marital contracts are conceptualised, negotiated, and executed in South Africa,” he says.
