It is stated in Section 7(3)(a) of the Divorce Act, that a court that grants a decree of divorce for a marriage out of community of property, entered into before the Matrimonial Property Act No 88 of 1984 came into effect, may order a redistribution of assets in favour of one spouse, where the antenuptial contract excludes community of property, community of profit and loss, and the sharing of accrual in any form.
Before the commencement of the Matrimonial Property Act No 88 on 1 November 1984, there was only the option of entering into an antenuptial contract, where community of profit and loss was excluded. In addition, unless expressly excluded in the contract, women were subject to marital power. The accrual system was introduced with the commencement of the Matrimonial Property Act, where each spouse retains and controls his or her own estate, but shares the growth of their estates upon divorce.
The legislators’ intention was to grant the court the discretionary power to order the redistribution of assets as a means of redressing previous inequity resulting from women being married out of community of property, and not having the option of the accrual system
On 11 May 2022, Mrs. Greyling, was granted a Redistribution of Assets Order in her favour, by the Gauteng High Court, although she was married in 1988 and not before 1 November 1984. The court noted that the marriage was concluded merely four years after the establishment of the Matrimonial Property Act, and entered into sui generis, based on the premise of love, intimacy and commitment rather than on the premise that the marriage might come to an end one day. Moreover, antenuptial contracts, in light of their particular characteristics, should not be treated in the same way as commercial contracts. The court declared Section 7(3)(a) as being inconsistent with the Constitution and invalid in that the provision is limited to marriages out of community of property entered into before 1 November 1984, and Mrs. Greyling was awarded a redistribution of assets. Also considered by the Gauteng High Court, was that women often get married on a weaker footing than men, with women having greater financial dependence and economic uncertainty.
The Greyling order was referred to the Constitutional Court for confirmation, and on 10 October 2023, the Constitutional Court handed down its judgment, confirming the Gauteng High Court’s order of constitutional invalidity. The Constitutional Court declared paragraph (a) of subsection 7(3) of the Divorce Act, inconsistent with the Constitution, and invalid in that it fails to include marriages that are concluded on or after the commencement of the Matrimonial Property Act.
It is therefore imperative that prospective spouses are well-informed regarding matrimonial property regimes and that they obtain sound legal advice, before entering marriage.