An Amendment to Section 7(3)(a) of the Divorce Act for Spouses Married Out of Community of Property

A look at Greyling v Minister of Home Affairs

On 11 May 2022, the Gauteng High Court in Pretoria declared section 7(3)(a) of the Divorce Act, 70 of 1979 (“Divorce Act”) unconstitutional.

Section 7(3)(a) of the Divorce Act dictates:

(3) A court granting a decree of divorce in respect of a marriage out of community of property –

(a) entered into before the commencement of the Matrimonial Property Act, 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… on application by one of the parties to that marriage, in the absence of any agreement between them regarding the division of their assets, order that such assets, or such part of the assets, or of the other party as the court may deem just be transferred to the first-mentioned party.”

In practical terms, couples married out of community of property, excluding the accrual system, and before the commencement of the Matrimonial Property Act 88 of 1984 (“the MPA”), were precluded from petitioning the court to exercise its discretion in granting an order for redistribution of assets.

Mrs Greyling, an estranged wife, married her wealthy farmer husband in March 1988, out of community of property, excluding the accrual system. She contended that unless her application was successful, neither she nor other spouses in a similar position would be entitled to claim a redistribution order on divorce, regardless of the severe injustices they could endure, considering their specific context.

The court was not called upon to decide whether Mrs Greyling was entitled to a redistribution order but rather to determine whether section 7(3)(a) of the Divorce Act (which deprived her from such relief) was constitutional.

Mrs Greyling’s constitutional attack on section 7(3)(a) was twofold:

1. Infringement of section 9(1) of the Constitution for arbitrarily and irrationally differentiating between people married before and after 1 November 1984 when the MPA commenced.
2. Violation of section 9(3) of the Constitution in that the cut-off date has disproportionate consequences for women.   

She contended that the contravening section allows courts to exercise discretion where parties contract out of the default in community of property regime but disallows the court’s discretion where couples contract out of the second default rule of the accrual. Furthermore, she maintained that there is no legitimate government purpose to justify the differentiation, and that the “choice argument” is a fallacy, whereby it is assumed that the purpose of limiting section 7(3)(a) is to give effect to the choice to contract to exclude the accrual where married out of community of property.

The “choice argument” was also recently rejected in Bwanya v Master of the High Court, Cape Town [2021] ZACC 51, where a distinction was made between whether choice could realistically be exercised, versus a party’s capacity to contract.

On violation of section 9(3) of the Constitution, Mrs Greyling contended that the impugned section does not operate gender-neutrally, as husbands and wives are not affected equally by the prohibition on the court’s discretion to grant a redistribution order. In the context of gender inequality in South Africa, women tend to enter marriages in a weaker bargaining position than men and, resultantly, have less autonomy to contract on terms that would be favourable to them. This inequality is then exploited and exacerbated during the marriage by heteronormative standards which reinforce an unequal division of child-rearing and housework responsibilities between men and women in families. Where the court’s discretion to order just and equitable adjustments to matrimonial property regimes is limited, women are disproportionately disadvantaged.

Mrs Greyling’s application is unopposed. However, the Minister of Home Affairs filed an affidavit setting out its submissions sourced mainly from the South African Law Research Commission Issue Paper 34 dealing with the subject, proposing nine contentions against judicial discretion and four contentions in favour of it.

Four of the nine contentions against it addressed the implications of the privity and sanctity of contract which went hand in hand with the freedom to contract. Additionally, it addressed that judicial discretion would promote litigation, cohabitation and legal uncertainty, and that it would neglect the interests of creditors. The four contentions in favour primarily addressed the unequal bargaining position of women contracting into marriage in relation to men, and the reality of gender-inequality in South Africa.

The Pretoria Attorneys’ Association was admitted as amicus curiae for the matter and its eight contentions similarly addressed the sanctity of contract but went further to address the effect it would have on third parties and creditors who relied on that marriage contract. Furthermore, it contended that there was no evidential basis to prove that women are generally in a weaker bargaining position than men or that women lack an understanding of the consequences of entering an antenuptial contract.

In deciding whether Mrs Greyling’s constitutional attack was valid, the court applied the Harksen v Lane N.O. 1998 (1) SA 300 (CC) rationality enquiry:

“Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government purpose? If it does not, then there is a violation of s 8(1) [the equivalent of s 9(1) of the 1996 Constitution]. Even if it does bear a rational connection, it might nevertheless amount to discrimination.”

In assessing the section 9(3) validity challenge, the court followed the two-stage analysis, asking firstly whether the rule differentiates between people on grounds that amount to discrimination, and secondly whether that discrimination is unfair. The court considered and weighed up all contentions within the context of the differentiation between the various marriage and matrimonial property regimes, its legal development and the operation of section 7(3)(a) as well as the contentions that there is no legitimate government purpose justifying the differentiation between people married before and after 1 November 1984 and that the section operates to trap predominantly women in harmful and toxic relationships when they lack the financial resources to survive outside the marriage.

Section 7(3)(a) of the Divorce Act was declared constitutionally invalid to the extent that its operation is limited to marriages out of community of property entered into before the commencement of the MPA. It is important to note that the redistribution order is not an automatic entitlement and that, on application, the court will need to weigh up evidence provided regarding each spouse’s direct or indirect contributions made towards the estate during their marriage and inevitably make an order that is just and equitable.