Authored by Siobhan Hearne | 2 July 2024 | Divorce

 

Introduction

In October 2023, the Constitutional Court handed down judgment confirming orders of constitutional invalidity of section 7(3) of the Divorce Act[1] in the cases of EB (born S) v. ER (born B) and Others, and KG v. Minister of Home Affairs and Others.[2] This landmark ruling significantly altered South African divorce law.

The EB (born S) v. ER (born B) and Others case dealt with the absence of a redistribution order when a marriage ends by death rather than divorce, whereas the KG v. Minister of Home Affairs and Others case addressed the lack of a redistribution remedy for marriages entered into on or after 1 November 1984.[3] This judgment challenged section 7(3)[4] on these different grounds. This article delves into the judgment, clarifying its significance for South Africans and addressing common misconceptions about the ruling’s impact on divorces.

 

Legal Background

The Matrimonial Property Act,[5] enacted on 1 November 1984, introduced the accrual system. Accrual is the default arrangement for marriages out of community of property and assembly of profit and loss entered into after 1 November 1984, unless the parties exclude it in their antenuptial contract.[6] The accrual system provides that, upon the dissolution of a marriage by divorce or death, the spouse whose estate displays no accrual or a lower accrual than the other spouse’s estate gets a claim against the other spouse or deceased estate.[7] The amount of this claim is equivalent to half of the difference in the accrual of the spouses’ estates.[8]

Section 7(3) of the Divorce Act[9] states that if parties are married under an antenuptial contract based on community of property, community of profit and loss, and accrual sharing, upon divorce, a Court may make an equitable redistribution order transferring one spouse’s assets to the other if it is just and equitable to do so.[10] The redistribution remedy was established to assist spouses in addressing the unfairness and difficulties associated with marriages governed by antenuptial contracts (concluded before 1 November 1984) that exclude the accrual system. It was designed to protect economically disadvantaged spouses who could not automatically have a share in the estate.[11] For a Court to approve a claim under section 7(3) of the Divorce Act,[12] it must determine that the claimant contributed to the maintenance or growth of their spouse’s estate during the marriage, whether through providing services, saving expenses, or in other ways, alongside other relevant considerable factors.[13]

Prior to this decision, the redistribution remedy only applied to marriages that ended in divorce, not those that ended in death, and it was restricted to marriages entered into before 1 November 1984. This case questions the constitutional validity of section 7(3) of the Divorce Act[14] as it excluded the redistribution remedy for marriages dissolved by death and marriages entered into after 1 November 1984.

 

COURT’S FINDINGS

Constitutional Invalidity

The Court determined that section 7(3) of the Divorce Act[15] was unfairly discriminatory, as it applied exclusively to marriages entered into before 1 November 1984 and created indirect gender discrimination as section 7(3) of the Divorce Act[16] disproportionately affected women by excluding them from the redistribution remedy.[17] Further, the Constitutional Court determined that section 7(3)[18] established a disparity for spouses in ANC marriages entered into before 1 November 1984, allowing a redistribution remedy solely for those whose marriages ended in divorce, not by death.[19] The Court ruled that this differentiation lacked legal justification and constituted unfair discrimination under the Constitution.[20] Consequently, the Court expanded the scope of the redistribution remedy to cover all ANC marriages, whether concluded before 1 November 1984 or after 1 November 1984, and irrespective of whether the marriage is dissolved by divorce or death. The Court’s ruling requires a fairer distribution of assets in divorce cases, irrespective of when the marriage occurred or how it ended.[21]

 

Interim Measures

The Court has granted Parliament 24 months to amend the pertinent laws and, in the interim, has implemented measures to safeguard affected parties. Until legislative changes are made, the Court implemented temporary measures to broaden section 7(3) of the Divorce Act[22] to cover marriages entered into after 1 November 1984. This provides immediate relief, permitting courts to order asset redistribution in a “just and equitable” manner.[23]

Legal Implications

This significant change allows individuals who signed an antenuptial contract excluding the accrual system after 1 November 1984 to now file a redistribution claim under Section 7(3).[24] However, antenuptial contracts still hold their importance. While the redistribution remedy is now available to a wider group, it does not diminish the contracts’ significance. Couples with an ANC excluding accrual are not automatically considered married in community of property but can seek asset transfer during divorce under specific conditions. Courts are now interpreting these contracts considering the new provisions, balancing fairness and justice with respect for contractual agreements.[25]

 

Conclusion

The Constitutional Court’s decision represents a significant stride toward equality and fairness in South African divorce law. It compels legislative changes aimed at protecting vulnerable spouses, ensuring equitable treatment in marriage dissolution. This landmark ruling underscores a commitment to harmonizing South African legal standards with constitutional values, promoting a society characterized by fairness and justice.

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[1] Divorce Act 70 of 1979.

[2] (CCT 364/21; CCT 158/22) [2023] ZACC 32; 2024 (1) BCLR 16 (CC); 2024 (2) SA 1 (CC) (10 October 2023).

[3] Ibid para 1.

[4] Divorce Act op cit note 1.

[5] Matrimonial Property Act 88 of 1984.

[6] Ibid Section 2.

[7] Supra note 2 para 3.

[8] Matrimonial Property Act op cit note 5 Section 3(1).

[9] Divorce Act op cit note 1.

[10] Supra note 2 paras 139 and 140.

[11] “Section 7(3) of the Divorce Act, 70 of 1979 declared unconstitutional and invalid” available at Section 7(3) of the Divorce Act, 70 of 1979 declared unconstitutional and invalid – Cluver Markotter, accessed 23 June 2024.

[12] Divorce Act op cit note 1.

[13] Ibid Section 7(4).

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Supra note 2 para 123 and 143.

[18] Divorce Act op cit note 1.

[19] Supra note 2 para 149.

[20] Of the Republic of South Africa 108 of 1996.

[21] Supra note 2 paras 48, 74, 81 and 88.

[22] Divorce Act op cit note 1.

[23] Supra note 2 paras 149 and 150.

[24] Divorce Act op cit note 1.

[25] “DEMYSTIFYING THE CONSTITUTIONAL COURT JUDGMENT OF KG V MINISTER OF HOME AFFAIRS AND OTHERS [2023] ZACC 32” available at Judgment of KG v Minister of Home Affairs and Others (vermeulenlaw.co.za), accessed 23 June 2024.