By Mohamed Raees Hussain : Attorney – Legal Division
Two recent Constitutional Court judgments have resulted in questions being raised on the unconstitutionality of certain provisions of the Divorce Act, 70 of 1979 (“the Divorce Act”) to the extent that the impacted provisions have been declared as invalid and inconsistent with the Constitution of South Africa.
This article briefly explores marriages in South Africa and the impact of the two judgments on divorces.
Marriages in South Africa
Marriages concluded before 1 November 1984 could either be in community of property or out of community of property.
However, in terms of the Matrimonial Property Act 88 of 1984 (“the MPA”) which commenced on 1 November 1984 the accrual system was introduced as an option when entering into a marriage out of community of property.
This simply meant that the spouse with a higher asset value amassed during the subsistence of the marriage would be required to share a portion (determined in terms of a specific calculation) with the spouse with the lower asset value upon dissolution of the marriage either by death or divorce.
Divorce in South Africa
Divorces in South Africa are regulated by the Divorce Act which deals with the various aspects including maintenance and the division of assets.
Section 7(3) of the Divorce Act provides a Court with a discretion when dissolving a marriage out of community of property concluded prior to the commencement of the MPA, to transfer assets or part thereof from one spouse/party to the other.
Summary of the Cases
The cases before the Constitutional Court were:
EB v ER and others (Case CCT 364/21): this case challenged the fact that section 7(3) of the Divorce Act only applied to marriages dissolved by divorce and not by death.
The parties had been married under an antenuptial contract that excluded community of property. During the divorce process, Mr B passed away which automatically dissolved the marriage.
The Court upheld the High Court’s decision of constitutional invalidity. Specifically, subsection 7(3) of the Divorce Act 70 of 1979 was deemed inconsistent with the Constitution and invalid due to its omission of provisions for the dissolution of marriage by death.
However, the declaration of invalidity is temporarily suspended for 24 months to allow Parliament the opportunity to address the constitutional shortcomings.
During this period, the Matrimonial Property Act 88 of 1984 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.
The order does not impact the validity of acts related to the administration of deceased estates finalised before the date of the Court’s order.
2. KG v BG and others (Case CCT 158/22): this case challenged the fact that section 7(3) of the Divorce Act only applied to marriages entered into before 1 November 1984 and not marriages concluded after that date.
Legal proceedings were instituted after the parties’ 30-year marriage broke down. A redistribution order was sought in terms of section 7(3) of the Divorce Act but was unsuccessful as this section only applied to marriages out of community of property concluded before 1 November 1984.
The Court confirmed the High Court’s ruling of constitutional invalidity. Specifically, paragraph (a) of subsection 7(3) of the Divorce Act 70 of 1979 was found inconsistent with the Constitution and invalid for excluding marriages entered into on or after the commencement of the Matrimonial Property Act.
However, the declaration of invalidity is suspended for 24 months to allow parliamentary intervention.
Pending legislative changes, paragraph (a) of subsection 7(3) of the Divorce Act is to be read without certain exclusionary words.
The order does not affect the legal consequences of matters finalised before the date of this Court’s order.
So, what does this mean?
In terms of both cases and pending the intervention and necessary amendments to the Divorce Act by Parliament, Section 7(3) of the Divorce Act will now also apply to marriages dissolved by death and the power of a Court to make an order in respect of the assets or redistribution thereof will extend to marriages entered into prior to the enactment of the MPA as well as to marriages entered after the enactment of the MPA.
The effect of these judgments can be argued to be a step towards addressing inequalities which exist in Divorce proceedings and the distribution of assets arising therefrom, however it will be interesting to see how the effect of these judgments unfold and specifically impact those marriages wherein the division of assets are regulated by ante-nuptial contracts or similar contracts.
*The above is for general information purposes and should not be construed as advice,for legal advice relating to Divorce and the implications thereof, it is recommended that you seek guidance and advice from a Legal Practitioner*