On 10 October 2023 the Constitutional Court of South Africa delivered a groundbreaking ruling regarding certain sections of the Divorce Act.
In its judgment the Constitutional Court declared that paragraph (a) of subsection 7(3) of the Divorce Act 70 of 1979 (Divorce Act) is inconsistent with the Constitution and invalid to the extent that it fails to include marriages concluded on or after the commencement of the Matrimonial Property Act 88 of 1984 (Matrimonial Property Act).
The Constitutional Court determined that the differentiation between individuals who entered into a marriage (and an antenuptial agreement) before and after the commencement of the Matrimonial Property Act constitutes unjustifiable and indirect discrimination on the grounds of gender.
The effect of the judgment is that individuals married out of community of property without the accrual will now be entitled to claim a redistribution of assets notwithstanding the content of their signed antenuptial contract.
However, such a redistribution claim is not an automatic entitlement and a spouse instituting a Section 7(3) claim will still need to prove their direct or indirect contributions made towards the estate of the other spouse to be successful. A Court hearing such a claim will have to assess whether the claimant is entitled to a claim and also the quantum thereof.
It is emphasised that the remedy in terms of Section 7(3) can only be granted if those cases where the Court deems it just and equitable, taking into consideration the claimant’s contribution and other relevant factors. A court hearing a matter will have to take into consideration all the circumstances of that specific case.
The Constitutional Court responded to the concerns raised by the amicus curiae in the proceedings by stating that in terms of Section 7(5)(d) of the Divorce Act, a Court considering a redistribution claim can consider any other factor which should in the opinion of the Court be considered. The fact that the parties concluded an antenuptial contract excluding the accrual regime could and should be taken into account and the weight this factor should receive would however depend on the circumstances.
The Court further noted that other jurisdictions for example England and Canada have adopted the same approach. In the Judgement the leading England case in which the fundamental test was incapsulated was quoted as follows: “The Court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.
The Order granted by the Constitutional Court serves as a landmark judgment, not only impacting the patrimonial consequences of many marriages in South Africa but also a significant step towards a more equitable, just and fair future for all.