An Amendment to Section 7(3)(a) of the Divorce Act for Spouses Married Out of Community of Property

A look at Greyling v Minister of Home Affairs

Background

Before 1984 there were only two matrimonial property regimes, a marriage in community of property and one out of community of property (excluding community of property, community of profit and loss and accrual sharing in any form).  The Matrimonial Property Act, 1984 (“MPA”) introduced the concept of accrual sharing.

Section 7(3)(a) of the Divorce Act, 70 of 1979 (“Divorce Act”) states that 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, 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 may… 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, or of the other party as the court may deem just be transferred to the first-mentioned party.”

Mrs Greyling, an estranged wife, married her wealthy farmer husband in March 1988, out of community of property, excluding the accrual system. She contended that it was unconstitutional that couples married out of community of property, excluding the accrual system, and after the commencement of the MPA, were precluded from petitioning the court to exercise its discretion in granting an order for redistribution of assets.

The Gauteng High Court in Pretoria was not called upon to decide whether Mrs Greyling was entitled to a redistribution order but rather to determine whether section 7(3)(a) of the Divorce Act (which deprived her from such relief) was constitutional.

Judgment

Mrs Greyling argued that section 7(3)(a) of the Divorce Act was unconstitutional in that it infringed section 9(1) of the Constitution for arbitrarily and irrationally differentiating between people married before and after 1 November 1984 when the MPA commenced, and violation of section 9(3) of the Constitution in that the cut-off date has disproportionate consequences for women.  

The Court declared section 7(3)(a) of the Divorce Act, 70 of 1979 (“Divorce Act”) unconstitutional. The order was referred to the Constitutional Court for confirmation in terms of section 172(2)(a) of the Constitution, 1996. The Concourt has not yet heard the matter.

Conclusion

The finding that section 7(3)(a) was declared constitutionally invalid, to the extent that its operation is restricted to marriages out of community of property entered into before the commencement of the MPA, does not grant an automatic entitlement to a redistribution order. Instead, a court will need to assess the evidence presented concerning the direct or indirect contributions made by each spouse towards the estate during their marriage. Subsequently, the court will make an order that is both fair and equitable.