News24 | 'Victory for women, gender equality': ConCourt orders Parliament to make changes to Divorce Act

The Constitutional Court has declared section 7(3) of the divorce act unconstitutional.

• The Constitutional Court has given Parliament 24 months to amend a section of the Divorce Act to allow divorced spouses to claim from their exes even if they were married out of community of property.
• The court said Section 7(3) of the Divorce Act is unconstitutional and indirectly discriminates against women.
• The Commission for Gender Equality added the court's decision was a victory for gender equality.

The Commission for Gender Equality (CGE) has welcomed this week's Constitutional Court ruling on the Divorce Act, which directed Parliament to amend a section to allow access for divorcees to claim assets from their ex-lovers during a divorce, even if they were married out of community of property.

An out-of-community of property marriage refers to a union of spouses who choose to keep their assets and liabilities separate throughout their marriage.

On Tuesday, the apex court ruled Section 7(3) of the Divorce Act was constitutionally invalid because it fails to include marriages concluded on or after the commencement of the Matrimonial Property Act of 1984.

The Constitutional Court ruling came after two divorced women successfully challenged divorce legislation in the Gauteng High Court in Pretoria.

One of the woman referred to as Mrs B, married her late ex-husband, Mr B, out of community of property in 1983.

She filed for divorce in 2015.

A year later, she applied for a redistribution order, but Mr B died before the case was finalised. 

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The executor of Mr B's estate argued in court she had no claim to his assets because he was dead.

The other woman, identified as Mrs G, married Mr G out of community property in 1988.

She filed for divorce in 2017 and applied for a redistribution order but was denied access because her marriage took place after the cut-off date.

The High Court in Pretoria overturned lower court judgments against the women and referred the case to the highest court in South Africa for confirmation.  

The CGE participated in the case, represented by the Legal Resources Centre (LRC), as friends of the court.

The commission argued that South Africa had "international obligations in terms of the Convention on the Elimination of All Forms of Discrimination against Women General Recommendations, which states that financial and non-financial contributions in a marriage should be accorded equal weight."

Constitutional Court ruling

The apex court ordered MPs to insert a legal remedy to allow spouses to transfer assets and liabilities between each other even if they were married in community of property.

A unanimous ruling penned by Judge Owen Rogers said:

"It is unnecessary, in the case of a redistribution remedy, to find that the conclusion or enforcement of the antenuptial contract would offend public policy," Owens added.

The legal remedy will only be available to civil marriages entered into before 1 November 1984.

The court said the reason for this was that marriages entered into after this period were automatically subject to accrual unless expressly excluded in the antenuptial contract.

Rogers noted that, historically and generally, men in the country earned more than women.