On 11 May 2022 in the High Court of South Africa, Gauteng Division Pretoria in the matter between K.R. Greyling // Minister of Home Affairs & Others declared that Section 7(3)(a) of the Divorce Act, 70 of 1979 (hereinafter referred to as “the Act”) is inconsistent with the Constitution and invalid insofar as it limits the operation of Section 7(3) of the Act to marriages out of community of property entered into before the commencement of the Matrimonial Property Act, 88 of 1984.

Section 7(3)(a) of the Act of 1979 reads –

“A court granting a decree of divorce in respect of a marriage out of community of property— 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”

Section 7(3)(a) governs the distribution of assets during divorce proceedings, prior to the judgment, wherein a court was not entitled to make a redistribution order where the marriage was entered into after the commencement of the Matrimonial Property Act, 1984.

There were no benefits for parties married out of community of property without the accrual system. This judgment therefore makes allowance for individuals to claim a redistribution of assets irrespective of what their antenuptial contract stipulates.

A spouse should be mindful of the fact that they would still need to prove their direct or indirect contributions which they made towards the estate of the other spouse in order to be successful as a redistribution claim is not an automatic entitlement in terms of the said judgment.  The court hearing such an application will still have to decide upon not only whether the spouse bringing such a claim is entitled thereto, but also the extend thereof which will differ greatly from matter to matter. The court bases its decision on whether to grant the redistribution order on the evidence presented before the court. 

The finding of invalidity of Section 7(3)(a) of the Act will largely impact any future antenuptial contracts and will play a further unknown role in contracts that have already been entered into.

The Constitutional Court must now consider and decide whether or not to confirm the invalidity order.

By Gareth Pretorius (Candidate Attorney) and Larissa Kotzee (Candidate Attorney) assisted by Elizna Meyer (Director) | Litigation Department