On 10 October 2023, the Constitutional Court of South Africa delivered groundbreaking judgments in two separate but interconnected cases, both challenging the constitutionality of Section 7(3) of the Divorce Act of 1979. [EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others[2023] ZACC 32].

The first case, known as CCT 364/21, commenced when Mrs. B found herself entangled in a divorce dispute with her late husband. This legal proceeding brought forth significant inquiries regarding the scope of the Divorce Act, which appeared to exclusively address marriages terminated through divorce and not those dissolved due to death. Mrs. B contended that this distinction constituted unfair discrimination, particularly impacting spouses married before November 1, 1984, who fell outside the ambit of the accrual system. The High Court concurred with Mrs. B's argument, deeming the relevant section unconstitutional and subsequently referred the issue for confirmation to the Constitutional Court.

In the Constitutional Court, the primary issue under scrutiny revolved around the inequitable distinction between marriages terminated by death before and after 1 November 1984. Although the Minister highlighted the historical backdrop and expressed apprehensions about the intricacies of adjudication, the Court determined that the differentiation lacked justification and upheld the High Court's ruling. Furthermore, the Constitutional Court presented an interim resolution, granting Parliament a 24-month window to formulate corrective legislation.

The second case, known as CCT 158/22, was initiated by Mrs. G. She found herself ineligible for a redistribution order under section 7(3) of the Divorce Act because her marriage occurred after 1 November 1984. The High Court had previously acknowledged that this restriction was logically linked to a valid government objective but deemed it discriminatory and unjust. In the Constitutional Court, Mrs. G continued her legal challenge, with backing from the Commission for Gender Equality (CGE). The CGE emphasized international commitments, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the African Union's Maputo Protocol.

The Constitutional Court determined that while the distinction made on the basis of the marriage date had a rational basis, it nevertheless amounted to indirect gender discrimination. In response, the court decided to temporarily suspend the declaration of invalidity for a period of 24 months. During this time, it implemented an interim measure by severing the discriminatory provision in section 7(3)(a) to provide immediate relief.

In both cases, the Constitutional Court confirmed the High Court's rulings of constitutional invalidity, providing a 24-month window for Parliament to address these issues. The judgments mark a significant step toward aligning South African family law with constitutional and international standards, ensuring fairer outcomes in divorce and matrimonial dissolution cases.

Constitutional Review of Subsection 7(3) of the Divorce Act: The court's scrutiny centered on whether Subsection 7(3) of the Divorce Act exhibits gender-based discrimination, especially in its treatment of marriages categorized as "out of community of property" based on their marriage date – CCT 364/21.

Expansion of the Divorce Act: The court deliberated on the question of whether the scope of the Divorce Act should extend to cover not only divorce but also the dissolution of marriage by death – CCT 158/22.

The ruling in this case carries substantial ramifications for marriages classified as "out of community of property" without the accrual system, established after 1 November 1984. Prior to this judgment, individuals in such marriages were devoid of any asset redistribution entitlement in the event of divorce, in contrast to those in marriages contracted before the enactment of the Matrimonial Property Act of 1984. This was deemed indirectly discriminatory, particularly disadvantaging women, and thus declared unconstitutional.

What is the effect on marriages concluded after 1 November 1984?

  1. Asset Redistribution: The recent Court ruling has introduced a transformative shift in the landscape of asset redistribution following divorce within these marriages. Under the new legal framework, a spouse who has played a role in contributing to the other spouse's estate, whether directly or indirectly, now has the opportunity to assert a claim for a portion of those assets. In contrast to the prior status quo, where such couples typically had no entitlement to asset redistribution upon divorce, the Court's judgment paves the way for a more flexible approach, emphasising what is deemed "just and equitable." This marks a substantial departure from the former legal norms and adds a fresh layer of financial considerations for couples who find themselves contemplating divorce.

  2. Interim Measures: While awaiting legislative amendments, the Court has implemented temporary measures that effectively broaden the application of subsection 7(3) of the Divorce Act to encompass marriages formed after 1 November 1984. Consequently, individuals in such marriages can promptly seek court intervention for asset redistribution until permanent legal changes are enacted. This represents a significant milestone in offering swift resolutions for those currently undergoing divorce proceedings or considering them.

  3. Choice and fairness: The Court also addressed the concept of "choice," underscoring that the mere presence of the accrual system at the time of marriage does not serve as a valid rationale for the discrimination observed. The judgment highlighted that choices are not always made independently and can be subject to various influences, such as social pressures and imbalances of power within the matrimonial relationship. The judgment meticulously scrutinized the notion of "choice" in the context of entering into matrimonial contracts. It recognized that the mere availability of the accrual system at the time of marriage failed to provide a satisfactory justification for the prevailing discrimination. The Court stressed that decisions related to matrimonial contracts are frequently swayed by diverse factors, encompassing social influences, power differentials, and limited access to legal counsel, thereby rendering the "choice" less than entirely free or informed.

  4. Legal Certainty: Although the judgment does introduce an element of uncertainty for couples who may have structured their financial plans according to the prior legal framework, it also aligns the law more closely with principles of fairness and gender equality. The Court dismissed arguments that this might result in undue uncertainty, highlighting that comparable provisions already exist for various marriage arrangements and emphasizing that the "just and equitable" distribution principles offer courts ample guidance.

  5. International Law Recommendations: The Court also made reference to South Africa's international law obligations, particularly those that pertain to gender equality. This adds another layer of complexity and urgency to the legislative amendments that need to be made, as they must also be in line with international standards.

  6. Timeframe for Legislative Action: The Court has given Parliament a 24-month window to amend the relevant laws. This puts pressure on legislative bodies to act promptly to rectify the constitutional defects identified by the Court. Until such amendments are made, the interim measures will apply, providing immediate but potentially temporary relief for affected parties.

The judgment clarifies that its directives do not have retrospective implications. As per the judgments in both Case CCT 364/21 and Case CCT 158/22, the prescribed changes will not impact the legal consequences of any actions taken concerning the administration of a deceased estate that has already been definitively settled by the date of the order. Furthermore, no claims may be raised by or against the executor of a deceased estate that has been conclusively resolved by the order date.

In practical terms, this means that the judgment won't retroactively affect marriages that have already been dissolved due to divorce or death, with financial matters already settled. The Court's decision is geared towards the future, applying solely to forthcoming cases and potentially ongoing cases that haven't yet reached final resolution.

Nevertheless, the Court has instituted a 24-month suspension of the declaration of invalidity, affording Parliament time to enact corrective legislation. During this interim period, the Matrimonial Property Act of 1984 is to be interpreted as including new provisions aligned with the Court's judgment. These provisions function as stopgap measures until Parliament can formally amend the law.

The ruling by the Constitutional Court marks a significant turning point in the realm of South African family law. It brings about profound changes in the legal landscape for marriages falling under the "out of community of property" category, specifically those contracted after 1 November 1984. This pivotal decision doesn't merely challenge established legal norms; rather, it sets a groundbreaking precedent by establishing a more equitable framework for asset redistribution in the event of marriage dissolution.

The Court's judgment serves as a clear call to action for legislative bodies. It underscores the pressing need to align South African matrimonial law with constitutional imperatives and international principles advocating for fairness, gender equality, and human dignity. In doing so, it effectively dismantles longstanding legal barriers that have disproportionately disadvantaged women, particularly in the financial aspects of divorce proceedings.

As the nation anticipates forthcoming legislative reforms to address the constitutional deficiencies highlighted in this judgment, it becomes evident that the implications of this decision are far-reaching. It acts as a catalyst for transformative change, urging lawmakers, legal professionals, policy experts, and society at large to reevaluate and reshape how matrimonial contracts are conceptualized, negotiated, and executed in South Africa.

This monumental shift in legal interpretation and application goes beyond future matrimonial contracts. It also provides a crucial lens through which existing contracts can be reviewed and, if necessary, amended to align with principles of fairness and equality. Thus, this ruling signifies a significant step toward achieving a more just and equitable society. It ensures that the law is not just an abstract concept but a living instrument that evolves to better serve the interests and protect the rights of all citizens, regardless of their gender, social status, or economic standing.

Therefore, this judgment is not a mere legal directive; it is a societal mandate for change, a stride toward a more equitable future, and a milestone in the ongoing journey to ensure that South African law reflects the values of fairness, justice, and equality for all.

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