Cluver Markotter

Section 7(3) of the Divorce Act, 70 of 1979 declared unconstitutional and invalid

On 10 October 2023, the Constitutional Court delivered groundbreaking judgments in two separate cases, both of which challenged the constitutionality of Section 7(3) of the Divorce Act 70 of 1979 (“Section 7(3)”).

The legal position prior to the Constitutional Court decisions in EB (born S) vs ER (born B) and Others; KG v Minister of Home Affairs and Others ZACC 32 [2023] were where parties had elected to conclude an antenuptial contract, upon dissolution of the marriage by divorce, a court may, where it deemed it just and equitable to do so, may make an equitable redistribution order that the assets of one spouse may be transferred to the other, in terms of Section 7(3).

Section 7(3) reads as follows:

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;
  • 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 38 of 1927), as it existed immediately prior to its repeal by the said Marriage and Matrimonial Property Law Amendment Act, 1988; or;
  • 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,

may subject to the provisions of subsections (4), (5) and (6), on application by one of the parties to that marriage, in the absence of any agreement between them regarding the division of their assets, order that such assets, or such part of the assets, of the other party as the court may deem just, be transferred to the first-mentioned party.

The purpose of Section 7(3) was to introduce a remedy for marriages which were entered into prior to 1 November 1984, when spouses could only elect to be married in community of property or out of community of property, without the accrual regime (“old ANC”). The section was aimed at compensating for the fact that spouses in such old ANC marriages, prior to November 1984, did not have the option to incorporate the accrual regime as a default regime when electing to conclude an antenuptial contract (“new ANC”).

Section 7(3) generally provides the Court hearing a divorce action with a discretion, when dissolving a marriage out of community of property concluded on or before 1 November 1984, to transfer assets or a part of assets from a spouse who is in a financially stronger position to the spouse who is considered to be financially weaker.

In EB (born S) vs ER (born B) and Others the Court considered whether Section 7(3) of the Divorce Act should also be applicable to marriages dissolved by the death of one of the spouses.

The Constitutional Court had to decide whether it is justifiable that spouses whose marriages terminate by divorce are treated differently from those whose marriages terminate by death, because the former class has the benefit of the redistribution remedy whereas the latter class does not. The Court held that exclusion of the redistribution remedy in the case of the dissolution of an “old ANC” marriage by death is a differentiation that does not serve a legitimate government purpose and amounts to unfair discrimination in terms of Section 9 of the Constitution.

In KG v Minister of Home Affairs and Others ZACC 32 [2023] the High Court held that there was unfair discrimination under Section 9(3) of the Constitution insofar as spouses in “old ANC” marriages, unlike spouses in “new ANC” marriages, had the option to adopt or reject the accrual regime, yet only spouses in “old ANC” marriages were given the redistribution remedy. Economically disadvantaged spouses in new “ANC marriages” were deprived of a benefit given to economically disadvantaged spouses in “old ANC” marriages, based solely on the date of marriage.

The High Court held that the constitutional validity of Section 7(3) should not be considered solely, as at the time when spouses conclude their antenuptial contract, there may have been other legitimate reasons for spouses to exclude the accrual system, despite wealth disparities. Inequality may manifest itself during the course of the marriage, when “a distortion is caused by the fact that one spouse contributes directly or indirectly to the other’s maintenance or the increase of the other’s estate without any quid pro quo,” usually in the case of woman.

In this situation Section 7(3) discriminates against spouses indirectly on the grounds of gender, because women who conclude a “new ANC” marriage may experience the same hardship as women who concluded “old ANC” marriages. Women in “new ANC” marriages can face significant hardship and impairment of their human dignity upon divorce, if their contributions to their spouse’s estate are not recognized. The court held that the differentiation in treatment is not justified by the argument of choice, because many prospective spouses may not have a genuinely free choice when signing antenuptial contracts.

The Constitutional Court agreed and declared the differentiation between old and new ANC marriages to be an unjustifiable indirect discrimination based on gender and the provisions making the application of section 7(3) dependent on the date of the marriage to be unconstitutional. The Constitutional Court therefore upheld the declaration of constitutional invalidity by the High Court, and suspended its order for 24 months to allow Parliament to rectify the legal issues identified by the court.

During this interim period of 24 months the Matrimonial Property Act, in conjunction with Section 7(3), will provide protection for spouses in old and new ANC marriages, regardless of whether the marriage ends through divorce or death. This extension of the redistribution remedy means that all spouses, irrespective of when they were married, can benefit from these legal protections.

This judgment can be seen as a necessary step towards achieving equality and fairness in marriage dissolution, in keeping with South Africa’s international law obligations and the principles enshrined in the Bill of Rights. The decision highlights the persistent inequalities within the institution of marriage and represents a positive move by the courts to protect the most vulnerable individuals in society. As the High Court stated in EB (born S) vs ER (born B) and Others, it is clear that full gender equality has not yet been achieved in South Africa. The measures implemented by the Constitutional Court through this judgment aim to ensure that no party is left at a disadvantage at the dissolution of a marriage, especially in cases where power imbalances may have led to unfairness in the marriage contract. As a result, the redistribution discretion is now available to all marriages out of community of property without accrual, regardless of the date on which the parties were married. Even if the parties signed an antenuptial contract to the contrary, they will still be entitled to request equitable division of assets accrued over the duration of their marriage.

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