Constitutional Court declared Sec 7(3) of the Divorce Act unconstitutional.

A Landmark Constitutional Court Ruling: Section 7(3) of the Divorce Act Declared UnconstitutionalGrobler Malope Inc would like to inform our clients and the public of a ground-breaking Constitutional Court judgment delivered on 10 October 2023 in the matter of KG v Minister of Home Affairs. This decision has fundamentally reshaped the legal landscape relating to the redistribution of assets upon divorce and marks a significant advancement in the pursuit of substantive equality in matrimonial law.

What was challenged?

At the heart of the matter was section 7(3) of the Divorce Act 70 of 1979, a provision that allows a court to order an equitable redistribution of assets when spouses are married out of community of property.Historically, however, this remedy was restricted to civil marriages concluded before 1 November 1984, the date on which the Matrimonial Property Act came into operation. Marriages entered into after this date were effectively excluded from relying on section 7(3), particularly where the parties had expressly excluded accrual in their antenuptial contract.

The facts of the case

The applicant in this matter married in 1988, out of community of property and without accrual. Upon divorce, she found herself barred from seeking redistribution under section 7(3) solely because her marriage was concluded after 1984 — despite having made significant contributions during the marriage.She challenged this limitation, arguing that it unjustifiably differentiated between spouses based purely on the date of marriage, thereby denying her equal protection and benefit of the law.

Findings of the High Court

The High Court agreed with the applicant and held that limiting the application of section 7(3) to pre-1984 marriages bore no rational connection to a legitimate government purpose. As a result, it violated section 9(1) of the Constitution, which guarantees equality before the law.The matter was subsequently referred to the Constitutional Court for confirmation.

The Constitutional Court’s approach

Before the Constitutional Court, the Legal Resources Centre (LRC), acting as amicus curiae on behalf of the Commission for Gender Equality (CGE), placed the issue in a broader constitutional and international context.Central to the argument was the reality that:

• Women often enter marriages with less bargaining power;
• Antenuptial contracts may be concluded without true parity or informed negotiation; and
• Rigid enforcement of contractual “certainty” should not trump fairness, justice, and equality in matrimonial property relations.

The court was urged to recognise South Africa’s international obligations and the need to ensure that women are not left economically vulnerable at the dissolution of a marriage.

Gender equality and substantive fairness

The Constitutional Court demonstrated a clear appreciation of the indirect and systemic discrimination caused by the exclusion of post-1984 marriages from section 7(3).The judgment acknowledged compelling research showing that South African women — particularly Black women — are disproportionately affected by multidimensional poverty, earn less than their male counterparts, and frequently shoulder a greater share of unpaid care and household labour. These realities often leave women financially dependent during marriage and severely disadvantaged upon divorce.The court further recognised that cultural and social practices can entrench inequality throughout a marriage, making it fundamentally unjust to ignore a spouse’s non-financial and indirect contributions to the growth of the other spouse’s estate.

The outcome

In unequivocal terms, the Constitutional Court declared that section 7(3) of the Divorce Act is unconstitutional insofar as it limits redistribution claims to marriages concluded before 1 November 1984.The court found that the section indirectly discriminates on the basis of gender and undermines human dignity by disregarding the contributions made by spouses — most often women — to the accumulation of wealth during a marriage.

What this means in practice

As a result of this landmark ruling:

• Spouses married out of community of property and without accrual, regardless of whether the marriage was concluded before or after 1984, may now seek a redistribution of assets upon divorce (and, in appropriate circumstances, death).
• A redistribution order is not automatic. The spouse seeking relief must still satisfy the court that they made direct or indirect contributions to the maintenance or growth of the other spouse’s estate.
• The court retains a discretion to grant or refuse redistribution based on what is just and equitable in the circumstances.

Why this judgment matters

This decision represents a decisive move away from rigid formalism and towards substantive equality and fairness. It recognises that marriage is often an economic partnership in reality, even where the paperwork suggests otherwise.For many spouses who believed they were contractually barred from relief, this judgment opens the door to justice.

Need advice?

If you are married out of community of property without accrual — or are facing divorce and are uncertain about your rights — it is essential to obtain specialised legal advice. Each case turns on its own facts, and the manner in which contributions are proven is critical.

Contact Grobler Malope Inc for expert advice on your specific circumstances.

Grobler Malope Inc

When results matter...®

📞 087 057 1790

📧 info@gmilaw.co.za

_{Copyright © 2023 Rohan Lamprecht. Disclaimer: The information in this article is of a general nature for educational purposes only, relevant to the publishing date. Any opinions expressed are solely those of the author and do not necessarily reflect the views or opinions of Grobler Malope Inc. The content is not intended to constitute professional or legal advice, and you are encouraged to call and consult with our attorneys to discuss your specific situation before making any decisions. Grobler Malope Inc - 087 057 1790 - info@gmilaw.co.za}