The Pretoria High Court has made a ruling which found certain parts of the Divorce Act, Act 70 of 1979 (hereinafter referred to as “the Divorce Act”) to be unconstitutional. This article will discuss this landmark ruling and indicate the consequences it might have for future matrimonial and divorce matters if the Constitutional Court is to confirm the ruling.

Before 1984 the South African legal system did not yet have the marriage regime of out of community of property without the application of the accrual system. There only existed the marriage regimes of in community of property and out of community of property.

The marriage regime of out of community of property (before 1984) gave the courts a discretion to award one party to the divorce a claim against the estate of the other party.  Therefore, the courts could assess the situation and circumstances of each party to a divorce matter in order to make an appropriate distribution of assets upon dissolving the marriage relationship.

However, after 1984 the position changed. The South African legal system introduced a new marriage regime, namely, out of community of property without the application of the accrual system. This marriage regime has the effect that the estates of each party to the marriage relationship remains separate and no party will have a claim against the other party’s estate upon dissolving the marriage, irrespective of any contributions made by either party during the subsistence of the marriage relationship. Moreover, there is no provision made for the courts to exercise its discretion to assess the contributions made by each party during the marriage relationship when tasked to dissolve the marriage relationship.

However, in 2022 this position might change. In the case of Greyling v Minister of Home Affairs and others (40023/21) [2022] ZAGPPHC 3 (11 May 2022) the presiding judge has found certain sections of the Divorce Act to be unconstitutional based on various grounds, but mainly discrimination based on gender.

The court, when handing down its judgment, indicated that this marriage regime, out of community of property without the application of the accrual system, does not take into consideration that many women still contribute to the household without being able to grow their own estate, skills and socio-economic status. Therefore, after dissolving the marriage relationship, many women are left with very little financial stability and security. Consequently, this marriage regime is found to be very prejudicial towards marital partners who stay at home and contribute to the household in various ways other than going to work.

It should be noted that this judgment is not yet final and that the judgment is to be confirmed by the Constitutional Court before it will come into effect.

The Minister of Justice and Constitutional Development (hereinafter referred to as the Minister) indicated that there has been talks, even before this judgement was made, about legal reform with regards to this particular marriage regime. The Minister indicated that commentary, which stands to oppose this legal transformation, indicated that this judgment, if confirmed, will bring the principle of freedom to contract into question. It was further suggested that reinstating the court’s discretion will result in an increase of litigation and costs on an already overburdened judicial system.

Furthermore, this judgment may result in the re-opening of previous divorce matters, albeit a divorce based on a settlement agreement or not. In other words, previously divorced partners may approach the Maintenance Court in order to reassess their situation and award the aggrieved partner compensation based on the contributions made during the subsistence of the marriage relationship.

Nonetheless, we should await the Constitutional Court’s assessment of the judgment in order to fully appreciate the comprehensiveness of it and what it entails for future matrimonial, maintenance and/or divorce matters.

Wilhelm Berrangé
candidate attorney at Hartzenberg Inc.