Constitutional Court makes yet another landmark ruling: section 7(3) of the Divorce Act declared unconstitutional.

On the 10th of October 2023, the Constitutional Court (“CC”) handed down what was a highly anticipated judgement following the Pretoria High Court’s order. The CC made an order declaring the provisions of section 7(3) of the Divorce Act 70 of 1979 inconsistent in that it differentiates between individuals who have entered into an antenuptial agreement before and after the commencement of the Matrimonial Property Act and the differentiation constitutes unjustifiable and indirect discrimination on the grounds of gender.

Individuals who have been married out of community of property without the accrual will now be able to claim a redistribution of assets provided that they can prove their direct or indirect contributions made towards the other spouse’s estate. It is important to also note that this remedy is not an automatic entitlement. The CC has highlighted that the court will only grant the section 7(3) remedy if the court deems it equitable and having regard to the claimant’s contribution and also other relevant factors.

In reaching its decision, the CC also took note of other jurisdictions being England and Canada in deciding the weight that should be given to antenuptial agreements. In a judgement in an England leading case, the fundamental test to the above was as follows: “The court should give effect to a nuptial agreement that is freely entered into by each party with the full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.
The CC ruled that the provisions are now to be read as excluding the words ‘before the commencement of ‘the Matrimonial Property Act 1984.

A landmark and pleasantly welcomed decision by the Constitutional Court of South Africa.