Article of the Divorce Act ruled unconstitutional


The Pretoria High Court has declared section 7(3)(a) of the Divorce Act to be unconstitutional and invalid insofar as it unfairly discriminates against marriages “out of community of property”.

The Constitutional Court will soon have to consider whether an order made by the High Court in Pretoria should be upheld or not.

On May 11, 2022, the Pretoria High Court issued a judgment declaring that section 7(3)(a) of the Divorce Act 70 of 1979 is unconstitutional and invalid insofar as the provision limits the application of section 7(3) of the Divorce Act to marriages outside community of property entered into before the coming into force of the Marital Property Act 88 of 1984 on November 1, 1984.

The Honorable Justice Van der Schyff challenged the wording, “concluded before the Matrimonial Property Act 1984 came into force”, saying that its wording was inconsistent with the Constitution and therefore invalid.

Paragraph 7(3)(a) of the Divorce Act is read without the inclusion of these words.

A court granting a judgment of divorce in respect of a marriage out of community of property entered into before the coming into force of the Matrimonial Property Act, 1984, in terms of a marriage contract whereby the community of property , profit and loss community and accumulation sharing in any form are excluded; or … may, subject to the provisions of subsections (4), (5) and (6), at the request of one of the parties to such marriage, in the absence of any agreement between them as to the division of their property, order that the property or such part of the property of the other party as the Court deems just be transferred to the first party.

The practical implication of the judgment would mean that anyone who entered into an annuity contract without accumulation, after the Marital Property Act came into force, can now apply to a court for a redistribution of property – nullifying the content of their signed nuptial agreement – if the court deems it appropriate and just. The factors which the Court would have to consider, other than any direct or indirect contribution made by the party concerned to the maintenance or increase of the estate of the other party, would include the existing means and obligations of the parties, any gifts made by one party to the other during the duration of the marriage, and any other factors which, in the opinion of the court, must be taken into account.
The Court had to consider whether, according to the standards of the Constitution, section 7(3) of the Divorce Act amounted to discrimination against a person. In the judgment, the Court stated that “differentiation amounts to discrimination based on the date on which a marriage was entered into because the human dignity of economically disadvantaged parties is undermined if they cannot go to court to exercise the discretionary power provided for in article 7 (Unlike their counterparts whose marriages were concluded before November 1, 1984, the economically disadvantaged parties who contributed to the maintenance of their spouse or to the increase of their estate, are vulnerable parties whose only recourse is to go to court for support.The unequal power relationship implicit in any claim for support, and the extent to which it renders an economically disadvantaged party vulnerable, in these circumstances speaks to ‘herself.”

If the Constitutional Court upholds the order, it will have a significant and binding effect on many marriages in South Africa.


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