The order granted by the Constitutional Court on 10 October 2023, regarding changes to the Divorce Act, has far-reaching consequences on the patrimonial consequences of many marriages. The outcome is important to the South African society at large and surely paves the way for exciting litigation in the future.
On 10 October 2023 the ConCourt 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.
To put it simply, those married out of community of property without accrual will now have the right to seek asset redistribution, irrespective of their antenuptial contract terms. However, it’s crucial to note that this claim isn’t automatic. To succeed in a Section 7(3) claim, a spouse must prove their contributions to the other spouse’s estate, either direct or indirect. The Court will then decide not only on entitlement but also the extent, which varies case by case.
The ConCourt emphasised that a Section 7(3) claim is granted only if the Court deems it fair, considering the claimant’s contributions and relevant factors. In essence, it’s not a one-size-fits-all, and the Court must assess the specifics of each case.
The concern raised about the validity of an antenuptial agreement was addressed by the Court, stating that under Section 7(5)(d) of the Divorce Act, the Court can consider any relevant factor, including the existence and terms of an antenuptial contract. The weight given to this factor depends on the circumstances.
The judgment also pointed out that other jurisdictions, like England and Canada, follow a similar approach. In an English case, the Court emphasised upholding nuptial agreements unless it would be unfair given the prevailing circumstances.
