Grobler Malope Inc. would like to inform its clients and the public of the landmark Constitutional Court judgment given on 10 October 2023 in the case of KG v Minister of Home Affairs. The case challenged the constitutionality of the Divorce Act's section 7(3). The court has unequivocally affirmed it to be unconstitutional to limit the application of the section to marriages conducted before the initiation of the Matrimonial Property Act of 1984.

Section 7(3) of the Divorce Act allows for the equitable redistribution of assets when spouses marry out of community of property and subsequently divorce. However, it exclusively applied to civil marriages solemnized before November 1, 1984. After this critical date, antenuptial contracts automatically included accrual for marriages unless expressly excluded in the antenuptial contract.

In this case, the petitioner entered into matrimony in 1988 with an antenuptial contract specifically excluding accrual and found herself precluded from pursuing a claim for equitable redistribution of assets under section 7(3). This limitation stemmed from the fact that her marriage postdated the pivotal year of 1984. Undeterred, she challenged the constitutionality of the section, contending that it unjustly restricted the redistribution remedy to marriages governed by older antenuptial contracts. 

The High Court, recognizing the constitutional concerns raised, declared the limitation imposed by section 7(3) did not bear a rational connection to a legitimate government purpose and, therefore, violated section 9(1) of the Constitution: "9. (1) Everyone is equal before the law and has the right to equal protection and benefit of the law" It was held to be unconstitutional, leading to its subsequent referral to the Constitutional Court for confirmation.
In the proceedings before the Constitutional Court, the Legal Resources Centre (LRC), acting as amicus curiae and representing the Commission for Gender Equality (CGE), strategically grounded its arguments in the broader context of South Africa's international obligations. 

The arguments underscored the duty to ensure that women are not left in a position of reduced protection due to imbalances in bargaining power and that a redistribution remedy should remain available irrespective of the terms of an antenuptial contract. Furthermore, the notion of 'certainty' in contracts should not override the need to ensure fairness and justice in patrimonial relations between spouses. This argument, rooted in the principles of fairness and justice, served as a powerful counterpoint to the rigidity associated with contractual expectations.

The Constitutional Court, in its deliberations, demonstrated an acute awareness of the indirect burdens placed on women by the exclusion of new antenuptial contract marriages in section 7(3). The court took cognizance of research illustrating that South African women, particularly those of Black ethnicity, are more likely to experience multidimensional poverty than their male counterparts. The judgment acknowledged the stark reality of gender income gaps, with women entering into marriages in a more financially precarious position, rendering them more dependent and with less bargaining power than their male counterparts. Additionally, the court drew attention to cultural practices that, during the marriage, often exacerbate and perpetuate existing inequalities by supporting an unequal division of care and household labour.

In unequivocal terms, the court declared that section 7(3) indirectly discriminates against spouses based on gender, underscoring the need for a legal framework that is mindful of and actively counters systemic gender-based disparities. The judgment is viewed as a triumph for women's rights and gender equality, acknowledging that a woman's fundamental human dignity is compromised when her contributions to the increase in her husband's estate are disregarded.

In conclusion, it is now possible for couples who entered into marriage out of community of property without the application of the accrual system to seek a redistribution of assets in the event of death or divorce despite the terms of their Antenuptial Contract. However, it's crucial to note that those seeking such redistribution must convince the court that their contributions significantly contributed to the success and expansion of the other spouse's estate. The court has the discretion to allow or disallow the claim for redistribution. 

Contact our offices for expert advice on your specific case. 

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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 Malopi 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 -

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