Recently the High Court in the matter Greyling v Minister of Home Affairs, found section 7(3)(a) of the divorce act unconstitutional and have referred this aspect to the Constitutional Court to have same declared as such. This has a huge impact on the way in which our current legal system deals with divorces in instances where the parties are married out of community of property without the accrual system.

In this highly controversial judgement, the court held that this above mentioned section in the divorce act is unconstitutional based on the view that this section prevented those parties married after 1984 out of community of property without the application of accrual system from financially benefiting from what they might have contributed to the marriage on divorce.

The Court inter alia was of the opinion that parties who was married prior to 1984 out of community of property, could claim a redistribution order in terms of which the divorce court had a discretion to, despite the fact that the marriage was out of community of property, still order division to some extent and thus the current section discriminated against marriages or parties who were married after 1984 and thus prevented the court from applying this discretion.

In this article I intend to provide my own opinion regarding this judgement and the impact which this judgment will have on divorce matters.

Before I bestow my opinion upon the reader, the history must first be explained. Prior to 1984 there were only two marriage regimes, being in community of property and out of community of property. Black marriages were automatically considered to be out of community of property unless specifically requested. After the Matrimonial Act was implemented, parties were allowed to choose whether they were to be married out of community of property with or without the accrual. Section 7(3)(b) enable the Courts to have a discretion in instances where the parties did not have a choice to still allow distribution of assets.

Now with this in place and if the parties then agreed to be married out of community of property with the accrual, it would upon divorce enable a party to be entitled to a percentage of the accrual, thus allowing the one party to share in the growth of the estate of the other.

Turning to my opinion about the Greyling matter, it needs to be remembered that an ante-nuptial agreement is a contract entered into between two parties. This agreement regulates their marriage and their assets and liabilities, which also bound their creditors. It is also so that the normal principals of contracts remain applicable such as, the validity of the agreement can be disputed if one is for example forced into signing the agreement or signed same under undue influence.