A Pretoria High Court Order was affirmed by the South African Constitutional Court on October 10, 2023, where it was determined that Section 7(3)(a) of the Divorce Act is unconstitutional and invalid insofar as it limits the application of Section 7(3) of the Divorce Act to marriages out of community of property entered into prior to the commencement of the Matrimonial Property Act.

ConCourt rules there is gender discrimination

The Constitutional Court determined that the distinction between persons who entered into a marriage (and an antenuptial agreement) before and after the implementation of the Matrimonial Property Act constitutes unjustified and indirect gender discrimination.

Simply said, people married outside of community of property without accrual will now be able to demand a redistribution of assets regardless of the terms of their signed antenuptial contract.

Redistribution of assets is not automatic

It should be noted, however, that such a redistribution claim does not imply automatic entitlement. To be successful, a spouse who files a Section 7(3) claim must demonstrate their direct or indirect contributions to the estate of the other spouse. The Court considering such a claim must then assess not only whether such a spouse is entitled to a claim, but also the quantum of such claim, which might vary substantially from case to case.

The Constitutional Court’s decision emphasises that the remedy under Section 7(3) may only be provided if the Court thinks it is just and equitable in light of the claimant’s contribution and other relevant criteria. This clearly implies that a Section 7(3) claim is not simply for the taking, and that a Court considering a case must analyse all of the facts of that individual instance.

Antenuptial contract will be considered when evaluating a claim

The amicus curiae in the case expressed doubts over the significance and legality of a prenuptial agreement should the Constitutional Court uphold the High Court’s ruling. In response to this concern, the Constitutional Court stated clearly that under Section 7(5)(d) of the Divorce Act, a court evaluating a redistribution claim may take into consideration any additional factors that, in the court’s judgment, should be taken into account. The weight this aspect should acquire would, however, depend on the circumstances. The fact that the parties executed an antenuptial contract eliminating the accrual regime may indeed and should be taken into consideration.

The Court also stated in the decision that other jurisdictions, such as England and Canada, have taken this approach. The leading English case in which the fundamental test was encapsulated was quoted in the Judgement as follows: “The Court should give effect to a antenuptial agreement 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.”

Speak to a Family Law and Divorce expert

The Constitutional Court’s Order of 10 October 2023 has far-reaching implications for the patrimonial consequences of many marriages, and the outcome is of considerable importance to South African society at large, paving the stage for interesting litigation in the future.

Our Family Law department specialises in all matters related to the family and divorce. Our expertise is used to protect the client whether it be the husband or the wife. Contact our experienced team with any enquiries.

Judgment link: https://www.saflii.org/za/cases/ZACC/2023/32.html 

For legal advice about Family Law, Divorce and Matrimonial Law

Juan Smuts                       juan@abgross.co.za

Heynes Kotze                   heynes@abgross.co.za

Corinne Petersen            corinnep@abgross.co.za



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