In May 2022, the High Court of South Africa Gauteng Division, Pretoria, declared that the wording of Section 7(3)(a) of the Divorce Act, 70 of 1979 (the Act) was inconsistent with the Constitution and invalid in the matter between Greyling v Minister of Home Affairs and others.
The application by the plaintiff concerns the constitutional validity of section 7(3)(a) with regards to the restriction of the remedy provided to marriages out of community of property with the exclusion of the accrual system that were entered into after 1 November 1984. Currently, courts do not have any power to exercise the discretion provided in section 7(3) in respect of such marriages.
Section 7(3) of the Act provides the court granting a decree of divorce in respect of a marriage out of community of property concluded before 1 November 1984 with a discretion to make a redistribution order to the effect that any asset, or sum of money, may be transferred from one spouse to another, subject to the provision of section 7(4), (5) and (6). This remedy is unavailable for marriages entered into after 1 November 1984.
The relief sought by the plaintiff has been referred to the South African Law Research Commission before – it formed part of matters approved by the Minister of Home Affairs for investigation, which could lead to a possible amendment of the Act. At the time of the hearing, the commission had not finalised its investigation. However, there are comments both in favour of and opposing the proposal that the court’s discretion includes marriages entered into after 1 November 1984.
The court explained that the requested amendment to section 7(3) of the Act is not aimed to change the matrimonial property regiment which the parties agreed to, but to provide relief in certain restricted instances to spouses who contributed (directly or indirectly) to the maintenance or increase of the estate of the other spouse. It reiterated that the Act currently has three prerequisites that must be satisfied before an order can be granted in terms of Section 7(3)(a):
- The marriage must have been entered into before the Matrimonial Property Act came into operation on 1 November 1984.
- The absence of any agreement between the parties regarding the division of their estates, where applicable.
- Proof of contribution directly or indirectly to the maintenance or increase of the other spouse’s estate during the course of the marriage – either by rendering services or by saving costs that would otherwise have been incurred.
After careful consideration, the court declared that the inclusion of the words “entered into before the commencement of the Matrimonial Property Act, 1984” in section 7(3)(a) of the Act is 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 this order was made.”
The orders by the High Court will be referred to the Constitutional Court for confirmation in terms of the Constitution, 1996.
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