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By: Radie Botha / Associate / Mooney Ford Attorneys

On 10 October 2023 the Constitutional Court handed down two landmark judgments, welcomed by both the Commission for Gender Equality and Legal Resources Centre, and widely recognized for its impact in shaping a more equitable future in South African Family Law.

Both cases dealt with constitutional challenges to Section 7(3) of the Divorce Act of 1979, which was ultimately found to be unconstitutional on the basis that it fails to include marriages entered into on or after the commencement of the Matrimonial Property Act of 1984, namely 1 November 1984. Section 7(3) of the Divorce Act stipulates that in cases where spouses married out of community of property get divorced, the Court may make an equitable Order that assets of one spouse be redistributed to the other – however this remedy was only available to civil marriages concluded before 1 November 1984. The rationale behind this exclusion was that marriages concluded after this date would automatically be subject to accrual unless expressly excluded by an Antenuptial Contract (ANC).

The Constitutional Court found that, while the differentiation based on date of marriage was rational, it constituted indirect gender discrimination against women and is therefore unconstitutional.

The Court recognized that the indirect impact of excluding new ANC marriages in terms of Section 7(3) disproportionately affects women. Referring to research, the Court highlighted that South African women are more prone to multidimensional poverty compared to men, with the burden of poverty falling even more heavily on black women. South Africa exhibits some of the most substantial mean and median gender income gaps, leading to a scenario where women often enter into marriage poorer and more dependent than men. This disparity in financial resources often translates into diminished bargaining power for women. Additionally, within the context of marriage, prevailing cultural norms and practices frequently contribute to the exploitation and exacerbation of inequalities by endorsing an uneven distribution of caregiving responsibilities and household labour.

The practical effect of distinguishing between older ANC marriages and newer ones is a disproportional bias against women. The Court therefore determined that Section 7(3) indirectly discriminates against spouses based on their gender. The failure to recognize a woman’s contribution to the growth of her husband’s estate undermines her fundamental human dignity.

The first case (EB (born S) v ER (born B) and Others) was initiated by Mrs. B who, in divorce proceedings against her late husband, raised crucial questions regarding the Divorce Act’s applicability, particularly its exclusion of marriages dissolving through the death of one of the parties. Mrs. B argued that it discriminates against spouses married before 1 November 1984, who were not covered by the accrual system (which was only introduced through the Matrimonial Property Act).

The second case (KG v Minister of Home Affairs and Others) was brought by Mrs. G who challenged her ineligibility for a redistribution of assets under Section 7(3) of the Divorce Act due to her marriage date being after 1 November 1984.

In both cases the Constitutional Court upheld the rulings of the respective High Courts and confirmed the constitutional invalidity of Section 7(3). It did however suspend the declaration of invalidity for a period of 24 months, thereby granting Parliament an opportunity to address this issue in legislation, but granting immediate relief to litigants through an interim severance of Section 7(3)(a).

The Constitutional Court specified in its judgment that these Orders do not apply retrospectively, meaning that it does not apply to marriages already dissolved either through death or divorce. Going forward however, spouses who have contributed, either directly or indirectly, to the growth of their partner’s estate could now have a claim to a portion of that estate on the dissolution of the marriage. Whether or not such a claim will be granted, and to what degree, will depend on a number of factors to be taken into account by the Court.

In conclusion, these rulings represent a notable step towards achieving a more just and equitable society. It emphasizes that the law is a dynamic instrument evolving to better safeguard the interests and rights of all citizens, regardless of gender, social standing or economic status. It is a certain victory for women and gender equality, and serves as a significant landmark in the continuous fight for the fundamental values of fairness, justice and equality for all in South African law.


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