On 11 May 2022, the Pretoria High Court delivered a judgment which declared that Section 7(3)(a) of the Divorce Act 70 of 1979 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 the Matrimonial Property Act 88 of 1984 on 1 November 1984.
The Honourable Justice Van der Schyff took issue with the wording, “entered into before the commencement of the Matrimonial Property Act, 1984,” saying its phrasing was inconsistent with the Constitution and therefore invalid.
A Court granting a decree of divorce 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; or ... may, subject to the provisions of subsections (4), (5) and (6), 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 assets, of the other party as the Court may deem just to be transferred to the first-mentioned party.The practical implication of the judgment would mean that any person who entered into an antenuptial contract without accrual, after the commencement of the Matrimonial Property Act may now ask a Court for a redistribution of assets – overriding the content of their signed antenuptial contract – if the Court deems it appropriate and just. The factors which the Court would have to consider, other than any direct or indirect contribution made by the party concerned to the maintenance or increase of the estate of the other party, would include the existing means and obligations of the parties, any donation made by one party to the other during the subsistence of the marriage, and any other factor which should in the opinion of the Court be taken into account.
Should the Constitutional Court confirm the order, it will have a significant and compelling effect on many marriages in South Africa.