Section 7(3)(a) of the Divorce Act
New Court Judgment Brings Change for Parties Married Out of Community Without the Accrual System
On 11 May 2022, the Gauteng High Court in Pretoria made a significant ruling by declaring section 7(3)(a) of the Divorce Act, 70 of 1979 unconstitutional. This section of the act pertains to the division of assets in marriages out of community of property, specifically those entered into before the commencement of the Matrimonial Property Act, 1984.
Section 7(3)(a) of the Matrimonial Property Act of 1984
Section 7(3)(a) states that a court granting a divorce decree for a marriage out of community of property, entered into before the Matrimonial Property Act of 1984, may order the transfer of assets to one party if there is no prior agreement regarding asset division. This provision had the effect of preventing individuals who entered into marriages after 1984 from seeking a fair division of assets during divorce proceedings, causing hardships for many couples.
Differentiating between the various marital regimes
The different marital regimes in South Africa include in community of property, out of community of property with the accrual system, and out of community of property without the accrual system. In a marriage in community of property, all assets and liabilities are jointly owned and shared equally between spouses. In marriages out of community of property with the accrual system, the growth of assets during the marriage is shared between the spouses upon divorce. However, section 7(3)(a) specifically pertains to marriages out of community of property without the accrual system.
The cut-off date of 1 November 1984 is significant because it marks the commencement of the Matrimonial Property Act, which introduced the accrual system as the default regime for marriages out of community of property. The cut-off date meant that couples who married after 1984 and excluded the accrual system in their antenuptial contracts were unable to seek a redistribution of assets through the court’s discretion.
The Greyling Case
The case of Greyling v Minister of Home Affairs brought attention to the hardships caused by section 7(3)(a) of the Divorce Act. Mrs. Greyling, who was married in March 1988 out of community of property without the accrual system, argued that the provision deprived her and other spouses in similar positions of the ability to claim a redistribution order on divorce. She contended that this differentiation violated the South African Constitution, specifically section 9(1) and section 9(3), which prohibit arbitrary differentiation and unfair discrimination.
Mrs. Greyling’s constitutional challenge focused on the arbitrary and disproportionate consequences of the cut-off date, particularly for women. She argued that the provision perpetuated gender inequality as women often entered marriages with less bargaining power and faced unequal responsibilities within the marriage. By limiting the court’s discretion to order just and equitable adjustments to matrimonial property regimes, women were disproportionately disadvantaged.
The court’s decision in Greyling v Minister of Home Affairs declared section 7(3)(a) of the Divorce Act unconstitutional to the extent that its operation was limited to marriages out of community of property entered into before the commencement of the Matrimonial Property Act. This ruling recognized the need to address the hardships faced by individuals who entered into marriages after 1984 and sought a fair division of assets during divorce proceedings.
It is worth noting that the judgment in Greyling v Minister of Home Affairs is set to be heard by the Constitutional Court on 10 May 2023. While this ruling marks an important step towards rectifying the unfairness caused by section 7(3)(a) of the Divorce Act, it is essential to recognize that a redistribution order is not an automatic entitlement. The court will still need to consider each spouse’s contributions to the estate and make an order that is just and equitable.
The Constitutional Court delivered a pivotal judgment on the matter on 10 October 2023. This landmark decision marks a significant turning point in the legal landscape. For an in-depth insight into the Con Court’s judgment and its implications, readers are encouraged to read Part B of this article.
The Gauteng High Court’s decision brings attention to the importance of ensuring that matrimonial property laws align with constitutional principles of equality and fairness. By challenging and declaring provisions such as section 7(3)(a) unconstitutional, the South African legal system strives to promote equal rights and opportunities for all individuals, regardless of their marital status or gender.
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