Constitutional court’s landmark ruling :

Step towards a more equitable, just and fair future for all.

On October 10, 2023, South Africa’s Constitutional Court issued groundbreaking rulings in two distinct cases challenging the
constitutionality of section 7(3) of the 1979 Divorce Act. Section 7(3) of the Act deals with the redistribution of assets for couples married out of community of property.

The section reads as follows:
“7(3) A court granting a decree of divorce in respect of a marriage out of community of property—
(a) entered into before the commencement of the Matrimonial Property Act of 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; (b) entered into before the commencement of the Marriage and Matrimonial Property Law Amendment Act, 1988, in terms of section 22 (6) of the Black Administration Act, 1927 (Act No. 38 of 1927), as it existed immediately prior to its repeal by the said Marriage and Matrimonial Property Law Amendment Act, 1988; or (c) entered into in terms of any law applicable in a former homeland, without entering into an antenuptial contract or agreement in terms of such law.” In the first case, the Constitutional Court declared that paragraph (a) of subsection 7(3) of the Divorce Act 70 of 1979 is inconsistent with the Constitution, deeming it
invalid for excluding marriages concluded after the inception of the Matrimonial Property Act 88 of 1984. Although the court acknowledged the rational basis for differentiating based on a marriage date, it identified indirect gender discrimination
in the process.

As a result, individuals married out of community of property without the accrual will now have the right to claim asset redistribution, regardless of the terms in their antenuptial contract. However, those initiating a Section 7(3) claim must still
substantiate their direct or indirect contributions to the estate. Each matter will be dealt with on its own merits and the courts may make an order on what may seem just and equitable.

In the second case, concerns were raised about the Divorce Act’s limited application to marriages ending in divorce, omitting those dissolved by death. This was deemed unfair discrimination, especially against spouses married before November 1, 1984, not covered by the accrual system. Subsection 7(3) of the Divorce Act 70 of 1979 is found inconsistent with the Constitution due to its exclusion of marriage dissolution by death. The Constitutional Court has given Parliament a 24-month window to address these concerns. These Constitutional Court rulings mark a significant moment, impacting not only the financial outcomes of many marriages in South Africa but also contributing to a more just and equitable future for all.