The Pretoria High Court on Wednesday (11 May) ruled that a part of South Africa’s Divorce Act is unconstitutional, setting up major changes for how divorces are handled when couples are married out community of property in the country.
The court judgement declared that Section 7 of the Divorce Act is inconsistent with the Constitution and invalid, saying it amounts to unfair discrimination in respect of ‘out of community of property’ marriages.
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 According to South Africa’s Matrimonial Property Act of 1984, when married out of community of property with the inclusion of accrual, spouses will, at divorce, share equally in the growth of the spouses’ estates during the marriage. If a spouse’s estate grows larger than the other, at the time of divorce, the spouse with the smaller estate can make a claim against the larger estate.
According to Natasha Truyens, senior associate and family law attorney at Barnard Incorporated Attorneys, the practical implication of the new judgment would mean that any person who enters into an antenuptial contract without accrual after the commencement of the Matrimonial Property Act , can now ask a court for a redistribution of assets – overriding the content of their signed antenuptial contract – if the court deems it appropriate and just.
In the judgment, the court said that “the differentiation amounts to discrimination based on the date on which a marriage was concluded because economically disadvantaged parties’ human dignity is impaired if they cannot approach the court to exercise the discretion provided for in s 7 of the Divorce Act.
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