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.
