“My husband and I were married out of community of property, with the exclusion of the accrual on 01 December 2008. We are in the process of divorce, and I have read that a High Court has found that Section 7(3) of the divorce act is unconstitutional. What does that mean and what impact does that have on my marriage?”

Section 7(3) of the divorce act generally provides the divorce court with a discretion when dissolving a marriage out of community of property concluded on or before 1 November 1984, to transfer assets or part thereof from the financially stronger spouse, to the financially weaker spouse.

The reason why this provision was made in the Divorce Act was to protect vulnerable women who were married out of community of property and contributed towards the growth of their husband’s estate, while their own was not growing due to the gender roles that they assumed during marriages.

It is also important to mention that prior to 1988, you could only get married in community of property or out of community of property and there was no inclusion of the accrual system. It is further important to note that during those years marriages between Black South Africans were governed by the Black Administration Act, which entailed that Black South Africans were automatically married out of community of property, unless they specifically indicated and chose to be married in community of property.

It is thus on these premises that the legislator with the Divorce Act and specifically section 7(3) attempted to right the wrong of the previous legislation in protection of the financially vulnerable women. After 1988 any party to a marriage could contractually agree to be married out of community of property with or without the accrual system.

In the matter G v Minister of home Affairs and Others, Me Greyling argued that this section should be declared unconstitutional due to the fact that this section inter alia discriminates against marriages after 1 November 1984 and that the Court should be allowed to exercise its discretion with not only to marriages before 1 November 1984 but marriages thereafter as well. The court found in favour of Me Greyling and found this section to be unconstitutional and refered this aspect to the Constitutional Court for confirmation, which I might add must still be done.

Now in answering the question how your divorce is impacted by this judgement, it needs to be understood that although a High Court in Gauteng has found that this section is unconstitutional, this finding must first be confirmed by the Constitutional Court (CC) before it can be regarded as unconstitutional, whereafter the CC will refer the act to the legislator to amend the act. Until this happens the act remains the law and the courts are bound by it, unless you apply to the court to have your matter kept pending until the above steps are taken, which is not always possible when dealing with a divorce matter.

It also needs to be mentioned that even if the CC confirms that the section is unconstitutional and refers it back to the legislator to amend, it needs to be noted that you as wife will not automatically be entitled to a redistribution of assets and as such and in order for the court to exercise its discretion you must be able to prove the following as set forth in section 7(4) of the Divorce Act, which entails that:

1. The court must be satisfied that it is just and equitable to do so, by assessing whether the financial weaker spouse contributed directly or indirectly to the maintenance or increase of the estate of the financially stronger spouse.
2. The parties must not be able to reach an agreement on the division of their assets;
3. The order can only be granted where the party against whom the order is sought has more assets then liabilities;

In determining what assets or part thereof are to be transferred in terms of this redistribution order, the court shall, apart from the requirements referred to above, take into account the following factors;

1. The existing means and obligations of the parties;
2. Any donation made by the one party to the other during the subsistence of the marriage, or which is still owning in terms of an ante nuptial contract;
3. Any order for forfeiture of benefits;
4. Any other factor that, in the opinion of the court, should be considered.

In conclusion as it currently stands, Section 7(3) of the divorce act is still part of our law and are divorces still governed by this section until this section is confirmed to be unconstitutional. In evaluating by the CC if the finding in G v Minister of home affairs and other are correct, the CC will have to weigh two important constitutional rights, the one of your contractual freedom and the other the plight of the women in South Africa. I am of the respected view that a court will seldom be able to interfere with a party right to freely enter into a contract unless that party is forced to sign and as such if you choose to be married out of community of property with the exclusion of the accrual, you must be bound by your choice.

It needs to be mentioned that your right as women/men (the financially weaker spouse) to still claim maintenance from your husband/wife, which includes relocation costs, is not impacted by your ante nuptial agreement and as such you still have the right to maintenance.

Reference List:

• The Divorce Act
• Schäfer, Family Law Service, Butterworths