In May 2022, the Pretoria High Court handed down a judgement declaring that Section 7(3)(a) of the Divorce Act 70 of 1979 (hereinafter referred to as “The Divorce Act”) is inconsistent with the Constitution to the extent that it applied to marriages out of community of property entered into before the commencement of the Matrimonial Property Act (hereinafter referred to as “The MPA”) and does not apply equally to marriages out of community of property entered into after the commencement of the MPA. You can read more about the judgement here:
Subsequent to judgement being granted by the Pretoria High Court, the Constitutional Court was approached to confirm that the provisions of the Divorce Act were inconsistent with the Constitution.
The matter was heard in the Constitutional Court together with another matter wherein the Pretoria High Court declared that Section 7(3) of the Divorce Act is inconsistent with the Constitution to the extent that it fails to include the dissolution of marriage by death.
Section 7 of the Divorce Act gives the courts the power, upon application by a party to a divorce, to order that the assets of a party be transferred to the applicant if the court is satisfied that the applicant party contributed directly or indirectly to the maintenance or increase of the other party’s estate during the subsistence of the marriage. The remedy provided in Section 7(3) of the Divorce Act was traditionally available to women who performed the role of housewives and as such, did not have the opportunity to grow the estates, while their husbands were in a position to grow their estates.
In terms of Section 7(3), the remedy would only be applicable to marriages out of community of property, without the accrual, entered into before the commencement of the MPA. The remedy only applied where a marriage was dissolved through divorce.
In considering the matters, the Constitutional Court confirmed that Section 7(3) of the Divorce Act is inconsistent with the Constitution for the following reasons:
1. The remedy applied to marriages entered into before the commencement of the
MPA but did not apply equally to marriages entered into after the commencement
of the MPA; and
2. The remedy was available in the event of a marriage being dissolved by divorce but
would not be available in the event of a marriage being dissolved due to the death
of a spouse.
The Court found that the discrimination in the application of the remedy provided for in Section 7(3) was not justifiable and as such, the Court confirmed that the Section is inconsistent with the Constitution and therefore invalid to the extent that it does not apply to marriages entered into after the commencement of the MPA and further to the extent that it does not apply to marriages that are dissolved through the death of a spouse.
The Court ordered that the declaration of invalidity shall be suspended for a period of 24 months to enable Parliament to cure the defects identified in Section 7(3). In the interim, the Court ordered that the Section shall be read to extend the remedy to marriages entered into after the commencement of the MPA and further that the Section shall be read to extend the remedy to marriages that are dissolved by the death of a spouse.
The effect of the judgement will be that a court will be empowered to order a redistribution of the assets of parties to a divorce who were married out of community of property without the accrual system, regardless of when the marriage was entered into. Furthermore, upon the death of a spouse, the surviving spouse may make an application for the transfer of the deceased spouse assets into the name of the surviving spouse in terms of Section 7, to the extent that it is just and equitable taking into account the direct and/or indirect contribution that the surviving spouse made to the maintenance and/or increase in the deceased spouse’s estate.
However, Section 7(3) of the Divorce Act does not automatically entitle the applicant to have the assets of his/her spouse transferred into the applicant’s name. The court may only make such an order when good cause is shown and the Court is satisfied that the Applicant made a significant direct or indirect contribution to the maintenance or increase of his/her spouse’s estate. The court must also consider a range of other factors outlined in the Divorce Act.
The orders granted by the Constitutional Court shall not apply retrospectively and, therefore, it shall not apply to any act, omission or fact existing before the granting of the order. Therefore, no party shall have a claim in terms of Section 7(3) of the Divorce Act in respect of the deceased estate of a spouse that has been finally wound up before the order was granted and furthermore, the remedy cannot be applied in respect of divorces that have already been finalised by a competent court.
The consequences of this judgement by the Constitutional Court are significant, as courts will now have the power to redistribute the assets of a party and transfer the assets to the other spouse, upon application being made to the court by a spouse, upon divorce or in the event of the death of a spouse, regardless of when the marriage was entered into.
It is left to be seen what effect this judgement will have on the enforceability of antenuptial agreements, especially those entered into without the inclusion of the accrual system. The Constitutional Court noted that the conclusion of an antenuptial agreement will be a factor to be taken into account when determining whether to apply the remedy provided for in Section 7(3) of the Divorce Act. As stated, above the remedy provided for in Section 7(3) shall not apply automatically but a court shall only apply the remedy after considering the factors stipulated in Section 7 and if it is in the interests of justice to do so.
In light of this judgement by the Constitutional Court, it is clear that the manner in which a court will distribute assets of spouses upon the dissolution of marriage is becoming increasingly uncertain. Therefore, it is highly recommended that spouses enter into a settlement agreement before instituting divorce action, to enable the parties to at least have some control over how the couple’s assets will be distributed upon divorce.
Furthermore, in light of the fact that the remedy provided for in Section 7(3) of the Divorce Act shall now apply to marriages dissolved through the death of the spouse, it is becoming increasingly advisable to have a valid will, which will govern how a person’s assets shall be distributed upon their death.
Our team at Naudé Dawson Inc. is well-equipped to guide you through divorce proceedings and to assist you with the drafting of final wills and testaments.
Should you require any legal assistance, please feel free to direct an email to trevor@ndinc.co.za or xander@ndinc.co.za.
Please note that the remedy provided for in Section 7(3) of the Divorce Act is only available to parties who are married out of community of property, with the exclusion of the accrual.