Apex court declares section of Divorce Act unconstitutional
The Constitutional Court upheld the previous ruling by the High Court in Pretoria which found section 7 (3) of the Divorce Act unfair and invalid.
Before the order, a marriage out of community of property without accrual, meant one party could not claim from the other’s estate when divorcing.
Under the section, the court could issue a special redistribution order if the individual can demonstrate a significant non-financial contribution to their spouse’s estate, but this was only applicable to marriages (out of community of property) entered into before the commencement of Matrimonial Property Act in 1984.
The apex court concluded that the differentiation between individuals who entered into a marriage, and an antenuptial agreement, before and after the commencement of the Matrimonial Property Act constitutes unjustifiable and indirect discrimination.
Explaining the order, senior associate in family law at Adams and Adams Shani van Niekerk says the Constitutional Court further found that the section discriminated against women.
“Very often women are not in the position to negotiate agreements when they get married and therefore, there’s discrimination against women. So, the court found the discrimination was indirectly based on gender.”
The challenge was instituted by a farmer’s wife who approached the high court when her 30-year marriage was coming to an end.
The woman argued she had contributed significantly to the growth of her husband’s estate through her non-financial contributions to the home, and raising of their three children.
She also said she had been instructed by her father-in-law, at the time of the marriage in 1988, to sign an antenuptial agreement which was out of community of property without accrual.
The Constitutional Court has given Parliament 24 months to remedy the error in the legislation.
However, pending the rectification, parties are entitled to claim in terms of Section 7 (3).
Van Niekerk believes the order paves the way for future amendments in family law.
“I think it’s a matter of time until someone approaches the court and says, ‘I am married with the accrual, but this and that is unfair…I definitely don’t think this is the end of the road,” she said.
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