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Certain sections of the Divorce Act found invalid and unconstitutional

Certain sections of the Divorce Act found invalid and unconstitutional

Author: By Fawzia Khan
Date: 2024-06-25

Sweeping changes are set to impact on marriages which are registered out of community of property by an Ante-nuptial Contract. The Constitutional Court has declared certain sections of the Divorce Act to be invalid and inconsistent with the Constitution of South Africa.

This came about in two different judgements dealing with out of community of property marital regimes. The Matrimonial Property Act (MPA) came into effect on 1 November 1984. It set out the different marital regimes which a couple could choose, namely they could get married "in community of property" (where both their estates are regarded as a joint indivisible estate) or an "out of community property" marriage, (with or without the accrual system).

In a "without the accrual system" there's no calculation to decide on what the value of assets was which was amassed during the marriage. "With the accrual system" is where the parties place a value of their estate at the commencement of the marriage. When the marriage ends either on death of a spouse or on divorce, a specific calculation is done to see who has amassed more assets during the marriage.

The spouse whose estate has grown more has to share a portion of that growth with the other spouse (with the lesser value). So how does that affect the ruling of invalidity of the Divorce Act? Well, previously a court could use its discretion to order that a spouse redistribute and transfer some or a part of the assets to the other party.

But the court could only do so provided that the marriage was concluded prior to 1 November 1984. The Concourt found this to be inconsistent with the Constitution and invalid as it excluded marriages entered into on or after the commencement of the Matrimonial Property Act. The other case which went to the Concourt dealt with the fact that the Section 7(3) redistribution only applied to couples getting a divorce and not on the death of a spouse. The Concourt also found this exclusion to be invalid and unconstitutional. The declaration of the invalidity of both is suspended for 24 months to allow Parliament to remedy the matter. The rulings will not be applied to previous court order but will affect all matters where section 7(3) issues are being litigated, until Parliament corrects and formalises the position. If you are about to get married, it's always a good idea to obtain proper legal advice from a professional well versed in the law so that you are fully appraised of the risks and benefits of a particular marital regime and can make an informed choice on what works best for you.

The Law Desk of Fawzia Khan and Associates. Giving YOU the Power of Attorney. Contact us on 031-5025670 or email fawzia@thelawdesk.co.za for legal assistance at competitive rates.