Section 7(3)(a) of the Divorce Act provides as follows:

“(3)       a court granting a divorce order in respect of a marriage out of community of property –

• 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 division of their assets, order that such assets, or such part of the assets, of the other party as the court may deem just be transferred to the first-mentioned party”

Prior to the commencement of the Matrimonial Property Act on 1 November 1984, you only had the option of entering into an antenuptial contract (“ANC”) in terms of which community of profit and loss were excluded. The introduction of the Matrimonial Property Act introduced the option of including the “accrual” system, allowing each spouse to retain full control over his/her estate during the subsistence of the marriage, but upon dissolution they would share in the growth that their respective estates have “accrued” during the marriage.

The intention of Section 7(3)(a) of the Divorce Act was to grant the Court with a discretionary power to order a redistribution of assets, with the aim of redressing inequities that resulted from marriages entered into before the option to include the accrual system was introduced.

The constitutionality of limiting this “redistribution of assets” to marriages entered into before the commencement of the Matrimonial Property Act of 1984 was challenged and ultimately the Gauteng High Court held that matrimonial contracts are entered into sui generis, based on love and commitment and the dissolution of the marriage (whether by death or divorce) is not often considered when concluding an ANC and accordingly such contracts should not be treated on the same footing as commercial contracts.

The Court further acknowledged that women often enter into marriages on a weaker footing than men, with higher levels of financial dependence on their spouse.

The Constitutional Court held this position on 10 October 2023, ordering that the paragraph (a) of subsection 7(3) of the Divorce Act is inconsistent with the Constitution and invalid to the extend that it fails to include marriages concluded after the commencement of the Matrimonial Property Act.

This judgment will have far reaching consequences on divorces, as it grants the Courts with discretionary power to essentially “convert” ANC’s entered into without the accrual system to ones with the accrual system, upon successful application. Time will tell how this will impact divorces going forward.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.