On 11 May 2022, the North Gauteng High Court declared Section 7(3)(a) of the Divorce Act inconsistent with the Constitution, with the ruling set to have major implications for marriages and divorces in South Africa.
Section 7 of the Divorce Act deals with the division of assets for couples married out of community of property. However, Section 7 lays out different rules for marriages that took place after the Matrimonial Property Act came into effect on 1 November 1984.
entered into before the commencement of the Matrimonial Property Act, 1984, in terms of an antenuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded However, such an application is not an outright right, she said. “The onus will be on the individual spouse to prove that they directly or indirectly contributed to the other spouse’s estate when instituting Section 7. For example, they looked after the kids and the home while the other spouse’s estate grew, being the only breadwinner.”
“Those who previously divorced with a similar contract entered into when they got married will now also be allowed to approach the court for relief. Still, again this will be dependent on many other factors.
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