CONSTITUTIONAL COURT CHANGES DIVORCE LAW DRAMATICALLY
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. It should however be kept in mind that such a redistribution claim is not an automatic entitlement.
Section 7(3) of the Divorce Act provides that where spouses married out of community of property get divorced, the court may make an equitable order that assets of one spouse be redistributed to the other. However, the remedy was only available to civil marriages entered into before 1 November 1984.
TAKE NOTE:
[130] The primary focus, in assessing whether discrimination is unfair, is its impact on those discriminated against.109 The hardship for women in new ANC marriages on divorce can be very great. Women have in the past suffered from patterns of disadvantage. A woman’s fundamental human dignity is impaired when no recognition is given to the contribution she has made to the increase in her husband’s estate. In its 1982 report, the SALC said that the objection to a system of complete economic separation was not the risk of a wife being left destitute (maintenance might be sufficient to avoid that risk); it was that she could not claim, as of right, a share of that which was achieved with her assistance. It was mainly for this reason that the majority report of the SALC recommended that the redistribution remedy be made available for both old and new ANC marriages.
[132] First, there are degrees of voluntariness when it comes to contractual choice. For this reason, Parliament has intervened in other spheres of relations, such as employment, consumer law and the granting of credit. Some prospective spouses may be commercially savvy or have the benefit of independent advice, but for many others this is not the case. Prospective spouses are often young, in love and looking forward to a long relationship. A prospective spouse may readily succumb to pressure to sign a standard antenuptial contract excluding the accrual regime. The pending marriage may have been announced and organised by the time the prospective spouses come to consider an antenuptial contract. The danger of imprudent decision-making is ever-present in this setting.
[150] The following order is made in Case CCT 158/22:
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The High Court’s order of constitutional invalidity is confirmed.
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Paragraph (a) of subsection 7(3) of the Divorce Act 70 of 1979 (Divorce Act) is declared inconsistent with the Constitution and invalid to the extent that it fails to include marriages concluded on or after the commencement of the Matrimonial Property Act 88 of 1984 (Matrimonial Property Act).
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The declaration of invalidity is suspended for a period of 24 months from the date of this order to enable Parliament to take steps to cure the constitutional defects identified in this judgment.
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Pending any remedial legislation as contemplated in paragraph 3 above, paragraph (a) of subsection 7(3) of the Divorce Act is to be read as excluding the words in strike-out text below:
“(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;”
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Theorderinparagraph4aboveshallnotaffectthelegalconsequencesofanyact done or omission or fact existing before this order was made in relation to a marriage concluded on or after 1 November 1984.
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Pending any remedial legislation as contemplated in paragraph 3 above, and pursuant to this Court’s conclusions in the present case and in Case CCT 364/21 EB (Born S) v ER (Born B) N.O. and Others, which has been decided simultaneously with the present case, the Matrimonial Property Act is to be read as including, as section 36A, the following provision:
“(1) Where a marriage out of community of property as contemplated in paragraphs (a), (b) or (c) of subsection 7(3) of the Divorce Act, 1979
(Act 70 of 1979) is dissolved by the death of a party to the marriage, a court may, subject mutatis mutandis to the provisions of subsections 7(4), (5) and (6) of the said Divorce Act, and on application by a surviving party to the marriage or by the executor of the estate of a deceased spouse to the marriage as the case may be (hereinafter referred to as the claimant), and in the absence of agreement between the claimant and the other spouse or the executor of the deceased estate of the other spouse (hereinafter referred to as the respondent), order that such assets, or such part of the assets, of the respondent as the court may deem just, be transferred to the claimant.
(2) For purposes of subsection (1), paragraph (a) of subsection 7(3) is to be read as excluding the following words: ‘before the commencement of the Matrimonial Property Act, 1984’.”
