Section 7(3)(a) of the Divorce Act states that a court granting a decree of divorce in respect of a marriage out of community of property, entered into before the commencement of the Matrimonial Property Act No 88 of 1984, in terms of an antenuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded, may order a redistribution of assets in favour of one spouse.

The primary matrimonial system in South African law is that of in community of property, should spouses not exercise their freedom of contract by entering into an antenuptial contract (“ANC”) which results in the spouses becoming tied co-owners in undivided and indivisible half-shares of all assets and joint debtors in respect of all liabilities they have at the time of marriage.

Prior to the commencement of the Matrimonial Property Act on 1 November 1984, a prospective spouse only had the option of entering into an ANC in terms of which community of profit and loss was excluded. Women were also subject to marital power unless it was expressly excluded in the ANC. Once the accrual system was introduced with the commencement of the Matrimonial Property Act each spouse retains and controls his or her own estate, but on divorce, the spouses share the growth that their estates have shown.

The intention of the legislature was to grant the court a discretionary power to order a redistribution of assets with the aim of redressing the inequities that resulted from such marriages where a woman, married out of community of property, was subjected to marital power, and did not have the option of the accrual system, as this only became available after 1 November 1984.

On 11 May 2022, the Gauteng High Court granted an Order in favour of the Applicant, Mrs Greyling, that notwithstanding that she was married during 1988 (not prior to 1 November 1984), it was noted that such marriage was only a mere four years post the establishment of the Matrimonial Property Act, and that matrimonial contracts entered into are sui generis, based on love, intimacy and commitment, and not entered into on the premise that such marriage may one day come to an end. ANC’s, given their particular characteristics, should not and cannot be treated on the same footing as commercial contracts. As a result, Mrs Greyling was awarded a redistribution of assets, as the Court declared Section 7(3)(a) inconsistent with the Constitution and invalid to the extent that the provision limits the operation of this section to marriages out of community of property entered into before 1 November 1984.

The Gauteng High Court also took into account that women often enter into marriage on a weaker footing than men, with high levels of economic uncertainty and financial dependence.

‘The decision to get married is there for one that many women make with less autonomy than men, and with less agency to insist on terms that would be advantageous to them.’ (Bonthuys & Coetzee)

The Greyling case, of course, raised enormous concerns about contractual autonomy as public policy demands that contracts be honoured.

The Greyling order was referred to the Constitutional Court for confirmation and prior to such confirmation, the Gauteng Attorneys Association, as second amicus curiae, submitted that, as per the matter of Jane Bwanya v Master of the High Court, Cape Town, Judge Mogoeng, in his dissenting judgment, stated that “Women are equal to men and that should inform the development of our constitutional jurisprudence in this matter”, and he agreed that women are entitled to exercise a choice on whether to marry, remain single or cohabit.

The Gauteng Attorneys Association submitted that the distinction between marriages concluded out of community of property prior to and since 1 November 1984 is rational and the applicability of Section 7(3) of the Divorce Act to the former is therefore constitutional. They are of the view that there are less restrictive means to achieve the purpose, such as contractual remedies associated with duress and/or undue influence, a formal application to change one’s matrimonial property regime, and a claim for spousal maintenance.

The Constitutional Court, however, handed down its consolidated judgment dated 10 October 2023, stating that the Gauteng High Court’s order of constitutional invalidity is confirmed and that paragraph (a) of subsection 7(3) of the Divorce Act is declared inconsistent with the Constitution and invalid to the extent that it fails to include marriages concluded on or after the commencement of the Matrimonial Property Act. It is in judgments such as this one that we note the South African legal system’s effort in continuing to promote equal rights for all irrespective of status or gender.

Given the complexities of the laws that govern marriages, it is paramount that parties obtain legal advice, before entering into marriage, regarding the consequences of marriage and make an informed decision about their chosen matrimonial property regime.

Telephone: +27 31 570 5334, email: adrienne.oliver@gb.co.za