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  • Writer's pictureRikus Scheepers

"Landmark" judgment on Divorce Act: good, bad, or ugly?

We decided that we are ready for our first minion. We embarked on a quest to find the perfect minion and put him to the test by asking him to tell us about the recent judgment in which the Gauteng High Court declared section 7(3)(a) of the Divorce Act unconstitutional.


We were so impressed that we hired Christiaan for 2023.


However, before we discuss his findings, let us set the scene.


The different marital regimes in South Africa:


In South Africa, there are three marital regimes: in community of property, out of community of property without accrual, and out of community of property with accrual.


Marriage in community of property is the default regime in South Africa. To enter into a marriage out of community of property (with or without accrual), prospective spouses must enter into an antenuptial contract ("ANC") setting out the marital regime they choose.


The broad implications of the regimes can be summarised as follows:

In a marriage in community of property, spouses share (mostly) everything in a joint estate, which includes assets and debts. In a marriage out of community of property without accrual, the spouses share nothing and keep their separate estates. In a marriage out of community of property with accrual, the spouses retain their separate estates, but there is a share in the estate which has shown the most growth during the marriage. It can be much more complicated than this, but these are the basic concepts.


What does the minion have to say?


Section 7(3)(a) of the Divorce Act allows for a redistribution of assets if spouses married out of community of property before 1984. A redistribution means that even if the marriage is out of community of property, some assets can be redistributed to the spouse claiming for the redistribution.


The redistribution calculation is based on the proven contribution made to the marriage by the spouse claiming the redistribution.


Before 1984, there was no accrual system. A spouse could be left with nothing after a divorce if she was married out of community of property and did not have any assets or growth in her estate at the dissolution of the marriage.


However, this section does not apply to spouses who were married out of community of property without accrual after 1984. Spouses married after 1984 have the option of the accrual system in their marital regime. This section, therefore, barred those married out of community of property without accrual after 1984 from claiming a redistribution order.


Where this becomes important, is where one spouse sacrificed having a career to contribute to the marriage in means that may not have resulted in an income. Just because a spouse raised children, ensured that the household ran smoothly, and fulfilled many supporting roles to the other spouse, does not mean that that spouse did not contribute to the marriage. Receiving nothing for sacrificing a career to ensure the success of the other spouse is patently unfair. Unfortunately, women suffer the most under this dispensation.


The Gauteng High Court saw the light and held that the distinction between marriages out of community of property entered into before and after 1984, discriminates against women based on their marriage date.

Due to the High Court declaring a section of legislation enacted by parliament unconstitutional, the High Court’s judgment has to be confirmed by the Constitutional Court and we await the Constitutional Court’s judgment. To date, the Constitutional Court has not confirmed the judgment.


What if the Constitutional Court confirms the judgment?


Firstly, it would mean that the High Court judgment stands and that the distinction between marriages out of community of property before and after 1984 in Section 7(3)(a) of the Divorce Act would fall away.


A court will therefore be empowered to grant a redistribution order if you were married out of community of property without accrual even after 1984 if it is just and equitable.


Is this fair? Yes definitely! Is it significant to everyone? Not so much.


What will the implications be?


The implications of this judgment have been blown out of proportion and misunderstood by the media.


We forget that a redistribution order is not automatic and that a spouse must first succeed in their application to Court for such an order. A spouse has an onerous burden of proof to meet to show that they contributed to the other spouse's estate and that a redistribution order would be just and equitable. Furthermore, our courts value giving effect to what the parties contracted and do not easily interfere in agreements which parties entered into willingly and freely. A redistribution order which goes against the terms of the ANC will therefore not easily be granted.


We also forget that this judgment has no bearing on marriages out of community of property with accrual. In such circumstances, the spouse whose estate has grown the least during the marriage already has a claim against the other spouse for a portion of the growth in the other spouse’s estate.


Therefore, the so-called "landmark" judgment on the Divorce Act is far from what it is made out to be, especially since it still has to be confirmed by the Constitutional Court.


Concluding a well-drafted ANC with the correct marital regime and ensuring both prospective spouses are fully aware of the consequences of the ANC, means that you don’t have to be concerned that the judgment will impact your marital regime.


That's where we come in. Contact Van Zyl Scheepers Attorneys if you want to know more about the different marital regimes, or if you want to meet our minion.

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