In a significant legal development, the Constitutional Court of South Africa, on 10 October 2023, upheld a judgment from the High Court of Pretoria, declaring Section 7(3) of the Divorce Act as unconstitutional. This ruling has far-reaching implications for marriages entered before the commencement of the Matrimonial Property Act and has the potential to reshape the legal landscape concerning property rights in divorce cases. This article explores the Constitutional Court's decision, the factors it considered, and the practical effects of this groundbreaking ruling on the division of assets in divorce proceedings.

A ruling, delivered in the High Court of Pretoria, declared that Section 7(3) of the Divorce Act was inconsistent with the Constitution, especially regarding marriages established on or after the enforcement of the Matrimonial Property Act. Following this, on 10 October 2023, the Constitutional Court affirmed the High Court's judgment, declaring Section 7(3) of the Divorce Act unconstitutional.

Section 7(3)(a) of the Divorce Act reads as follows: 
“(3) a court granting a divorce order 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;

Some of the factors the Constitutional Court considered are as follows: 
1. Differentiation between marriages entered before and after the Matrimonial Property Act. The court ruled as follows:
“In my view, the relevant differentiation is confined to spouses in old ANC (antenuptial contract) marriages.  Within that group, spouses
whose marriages terminate by divorce are treated differently from those whose marriages terminate by death, because the former
class has the benefit of the redistribution remedy whereas the latter class does not.”
2. The discriminatory factor of the differentiation, in terms of section 9 of the Constitution:
“Even on the broadest view of ‘attributes and characteristics’, however, differentiation based on whether the marriage ends by divorce
or death has nothing to do with the attributes and characteristics of the spouses.”
3. The justification of section 36 of the Constitution:
“Is the limitation on the equality right in section 9(1) of the Constitution justifiable in terms of section 36 of the Constitution? …”

The Constitutional Court then followed with “…it is the existence of section 7(3), coupled with the absence in any other legislation of a similar remedy for marital dissolution by death, that gives rise to the differentiation.  It is understandable, therefore, that section 7(3) was the target of the attack.  That the remedy might more appropriately be a reading-in of an analogous provision into the MPA is not fatal to the confirmation proceedings.”

The court afforded the Parliament 24 months to remedy the defect and stated that there is no reason that there should not be an immediate effective relief in the form of an interim reading-in.  It was suggested by the High Court that the reading-in be as follows:

“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 in terms of an antenuptial contract by which community of
property, community of profit and loss and accrual sharing in any form are excluded;
(b) entered into before the commencement of the [Amendment Act] in terms of section 22(6) of the [BAA] as it existed immediately prior
to its repeal by the [Amendment Act]; or
(c) entered into in terms of any law applicable in a former homeland, without entering into an antenuptial contract or agreement in
terms of such law, may, subject to the provisions of subsections (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.”

In conclusion, this means that parties married out of community of property without the accrual will be entitled to claim redistribution of assets despite their marital regime in their antenuptial contract. However, it must be kept in mind that this does not grant a party automatic entitlement and that the party claiming in terms of section 7(3) of the Divorce Act still has to prove their contribution towards the other party’s estate.  Each matter will be dealt with on its own merits and the courts may make an order on what may seem just and equitable.

Reference list:
1. EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others (CCT 364/21; CCT 158/22) [2023] ZACC 32 (10 October 2023)

WRITTEN BY MARITZA DU PREEZ
Maritza du Preez is an attorney at Miller Bosman Le Roux


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