A new one. Section 7(3)(a) of the Divorce Act unconstitutional? Redistribution of Assets with Divorce: Greyling Ruling

“Before the Matrimonial Property Act 1984 (“MPA”) came into effect, the law entrenched a patriarchal system in which a man was legally entitled to control his wife and where a woman had a weak bargaining position. On the assumption that the husband’s headship of the family was only removed in 1993, it means that the patriarchal system persisted for 9 years after the MPA came into force, but a woman lost the ability to make an application under 7(3) of the Divorce Act when the accrual system was introduced.” This is an extract from Ms Ancer’s report, a clinical psychologist under oath as an expert witness in support of Mrs G’s application.

Mrs G, like many others, had been married after the commencement of the MPA. She had been married to Mr G in 1988, 4 years after the MPA came to effect, out of community of property, with the exclusion of the accrual system. Before the wedding her husband’s father had advised her that no community of property and accrual would apply to her marriage to her husband and was given a one-page antenuptial contract to sign. The couple then went on and lived in luxury, Mrs G raising 3 children while living on a farm in a rural area. Mr G carried on making more money and acquiring more farms. Unfortunately, due to the abuse Mrs G sustained in her marriage, the parties divorced in 2016.

Now the question that was raised by the Greyling matter but also had been previously flagged by the South African Law Research Commission was why the courts did not have a similar discretion to retrofit distribution where one party has directly or indirectly contributed to the increase of the estate of the other party where the couple had married out of community of property, after 1984 but had not opted for the accrual at the time. Mrs G was of the opinion that it was discriminatory to differentiate between marriages entered into before and after 1 November 1984, the date on which the law permitting accrual took effect. If Mrs G had been married 4 years earlier, she would have been protected by the beneficial redistribution system but because of the cut of date (date which the MPA came into effect) a person in her position had lost the protection afforded by the courts.

As matters stood at the time of the Greyling matter, couples married out of community of property after 1984, and who had not signed up to the accrual system, were denied the protection of a ‘just and equitable’ decision by a judge to remedy the unfairness, merely because of the date in which they got married, irrespective of whether or not they had contributed to the increase of the other party’s estate.

Mrs G further contended that the cut-off date in s7(3)(a) disproportionately impacts women. The blanket deprivation of excluding spouses from the potential benefits of a ‘just and equitable redistribution order constitutes unfair discrimination based on sex, gender, marital status, culture, race and religion. As a result, it operates to trap predominantly women in harmful and toxic relationships where they lack the financial means to survive outside of the marriage. More than 25 years later after the transition to democracy, the intersecting inequalities of gender, race and class still render many women unable to access and realise their rights. The cumulative effect of a number of inequalities eg. Gender, income gap and unequal access to land and education and women being disproportionately situated outside the formal economy, is that women often enter into marriage on a weaker footing than man with high levels of economic precarity and financial dependence.

Court’s ruling:
The court found that section 7(3)(a) of the Divorce Act 70 of 1979 to be inconsistent with the Constitution and invalid to the extent that the provision limits the operation of section 7(3) of the Divorce Act to marriages out of community of property entered into before the commencement of the Matrimonial Property Act 88 of 1984. The words ‘entered into before the commencement of the Matrimonial Property Act 1984’ in section 7(3)(a) of the Divorce Act 70 of 1979 is declared inconsistent with the Constitution and invalid. The court further confirmed that this order shall not affect the legal consequences of any act done or omission or fact existing in relation to a marriage out of community of property with the exclusion of the accrual system concluded after 1 November 1984, before the order was made. The orders by the High Court will be referred to the Constitutional Court for confirmation in terms of the Constitution, 1996.