In this article, we discuss the Constitutional
Court ruling in the case of EB (born S) v ER (born B) and Others; KG v Minister of
Home Affairs and Others [2023]
Introduction:
On October 10, 2023, the Constitutional
Court of South Africa delivered a significant judgment in two separate
applications seeking confirmation of orders declaring section 7(3) of the
Divorce Act 70 of 1979 invalid and unconstitutional. The cases, CCT 364/21 and
CCT 158/22 centred on the issue of whether parties married under an accrual
regime may be awarded redistribution of assets by a court, regardless of when
they were married, or whether the marriage ends through death or divorce.
Discussion of the Case:
CCT 364/21 - Dissolution of Marriage by
Death:
In CCT 364/21, the case revolved around
divorce proceedings initiated by Mrs. B against her late husband, Mr. B, who
were married under an antenuptial contract that excluded community of property.
During the divorce process, Mr. B passed away, dissolving the marriage. The
primary constitutional challenge was the alleged discrimination in section 7(3)
of the Divorce Act, which only applied to marriages ending in divorce, not
death. Mrs. B argued that this distinction was unconstitutional, as it unfairly
discriminated against spouses married before November 1, 1984. The High Court
found this distinction unconstitutional and ordered an amendment to the Divorce
Act, including redistribution in cases of marriages dissolved by death.
In a unanimous judgment, the
Constitutional Court affirmed the High Court's decision. It found that section
7(3) created an unjustifiable differentiation between spouses married before
and after November 1, 1984, based solely on the date of their marriages. This
differentiation was deemed irrational and unconstitutional. The Court ordered
an interim reading-in of an analogous provision and granted Parliament 24
months to address the issue comprehensively.
CCT 158/22 - Marriages Before and After
November 1, 1984:
In CCT 158/22, Mrs G sought a redistribution order under section 7(3) of the Divorce Act after her 30-year marriage broke down. However, she was disqualified from its provisions due to the limitation that it applied only to marriages out of community of property concluded before November 1, 1984. Mrs. G argued that this limitation was unconstitutional as it arbitrarily discriminated against spouses married before and after the mentioned date. The High Court ruled in favour of the government, citing the importance of honouring contractual agreements.
In the Constitutional Court, Mrs G
continued her challenge against section 7(3), alleging that it unfairly
discriminated against spouses in different types of marriages, particularly
marriages concluded after November 1, 1984. The Court upheld her challenge,
finding that the differentiation based on the availability of the accrual
regime was rational but created indirect discrimination against women. The
Court ordered the suspension of the declaration of invalidity for 24 months and
an interim severance of the offending differentiation in section 7(3)(a) while
granting Parliament time to address the constitutional issues.
Conclusion:
In both cases, the Constitutional Court
has declared section 7(3) of the Divorce Act 70 of 1979 invalid and
unconstitutional, allowing for the potential redistribution of assets in
marriages governed by the accrual regime. These rulings have far-reaching
implications for spouses married before and after November 1, 1984. The Court's
decision emphasizes the need to rectify gender-based disparities and grants
Parliament time to enact legislative changes to address the constitutional
issues. These rulings mark a significant step towards achieving greater
fairness and equity in marital property matters in South Africa.
