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Published Date: October 10, 2023

On 10 October 2023 the Constitutional Court of South Africa confirmed the Pretoria High Court Order. It was declared that Section 7(3)(a) of the Divorce Act is inconsistent with the constitution and invalid to the extent that the provision limits the operation of Section 7(3) of the Divorce Act to marriages out of community of property entered into before the commencement of Matrimonial Property Act.

The Constitutional Court concluded that the differentiation between individuals who entered into a marriage (and an antenuptial agreement) before and after the commencement of the Matrimonial Property Act constitutes unjustifiable and indirect discrimination on the grounds of gender.

Simply put, individuals married out of community of property without the accrual will now be entitled to claim a redistribution of assets despite the content of their signed antenuptial contract.

It should however be kept in mind that such a redistribution claim is not an automatic entitlement. A spouse instituting a Section 7(3) claim will still need to prove their direct or indirect contributions made towards the estate of the other spouse to be successful. The Court hearing such a claim will then have to decide upon not only whether such a spouse is entitled to a claim, but also the extent thereof which may differ greatly from matter to matter.

In the Constitutional Court judgment it is highlighted that the remedy in terms of Section 7(3) can only be granted if the Court deems it equitable and just having regard to the claimant’s contribution and other relevant factors. This simply means that a Section 7(3) claim is not simply for the taking and that a Court hearing a matter will have to consider all of the circumstances of that specific case.

The amicus curiae in the proceedings raised concerns about the weight and validity of an antenuptial agreement should the Constitutional Court confirm the High Court decision. The Constitutional Court responded to this issue by specifically stating that in terms of Section 7(5)(d) of the Divorce Act a Court considering a redistribution claim can take into account any other factor which should in the opinion of the Court be taken into account. The fact that the parties concluded an antenuptial contract excluding the accrual regime could and should be taken into account and the weight this factor should receive would however depend on the circumstances.

In the Judgement the Court also noted that other jurisdictions for example England and Canada have adopted this approach. In the Judgement the leading England case in which the fundamental test was incapsulated was quoted as follows: “The Court should give affect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.

The Order granted by the Constitutional Court on 10 October 2023 has far reaching consequences on the patrimonial consequences of many marriages and the outcome is of significant importance to the South African society at large and surely paves the way for exciting litigation in the future.

Adams & Adams acted on behalf of the amicus curiae who was represented by a team of Advocates consisting of Adv Sybrand Stadler, Adv Sonica Mentz, Adv Adrian Thomson and lead by Adv Liezl Haupt S.C.

Shani van Niekerk
Senior Associate | Attorney

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