The Gauteng High Court has ruled that a section of the Divorce Act is unconstitutional. Graphic: Lisa Nelson

• Judge Elmarie van der Schyff has declared a section of the Divorce Act unconstitutional.
• The section which relates to the distribution of the couple’s assets on divorce, discriminates against women, she found.
• She struck it from the Act and has asked the Constitutional Court to confirm this.

The Gauteng High Court has declared unconstitutional a section of the Divorce Act which the judge said was unfair, especially to women. The section barred those married out of community of property and without the accrual system, from benefiting, on divorce, from what they might have contributed to the marriage.

Before 1984, South Africa had only two marriage regimes: in community of property, which meant the couple shared all assets and debts; and out of community of property, which meant the couple’s assets and debts were separated.

But with the enactment of the Matrimonial Property Act (MPA) the concept of “accrual sharing”, or asset sharing, was introduced. A section was introduced to the Divorce Act to give judges discretion in the distribution of assets in marriages out of community of property which had been concluded before the enactment of the MPA, when the accrual regime did not exist.

But the Divorce Act does not allow a court to make any order regarding “redistribution of assets” for couples married out of community of property, without accrual, after 1984.

This left many people, mainly women, financially barren, even though they had contributed to the household and assisted their spouses to accumulate assets over the years.

Judge Elmarie van der Schyff has now deemed section Section 7(3)(a) unconstitutional, striking it from the Divorce Act, and referring the matter to the Constitutional Court for confirmation.

The case before her was brought by the estranged wife of a wealthy farmer, who was married to her husband out of community of property, excluding accrual, in March 1988.

She said if she was not successful in her application to the court to strike out the section of the Divorce Act, neither she nor other spouses in a similar situation would be entitled to redistribution orders, irrespective of their particular circumstances and “no matter how stark the injustices they face”.

This, she said, was because as the law currently stood, the court had no power to exercise discretion. This was arbitrary and irrational and discriminated against people married after November 1984.

Judge van der Schyff said she had not been called upon to determine whether or not the applicant was entitled to any assets in her particular divorce but whether the section passed constitutional muster.

In argument during the hearing, it was submitted by the woman’s advocate that excluding spouses from the potential benefits of just and equitable redistribution constituted unfair discrimination, based on sex, gender, marital status, culture, race and religion.

“As a result, it operates to trap predominantly women in harmful and toxic relationships when they lack financial means to survive outside marriage,” it was submitted.

While the law did offer people a choice, it was often not a meaningful one in light of the context of gender inequality.

An expert report, submitted to the court, said that many women were still unable to access and realise their rights and “the decision to get married is therefore one that many women make with less autonomy than men, and with less agency to insist on terms that would be advantageous to them”.

The Minister of Justice and Constitutional Development initially opposed the application but later indicated he would abide by the court’s decision. He said the issue was already under consideration by the South African Law Research Commission for possible legislative amendment.

The Minister said public comment had already been received on the issue: Those opposed to the removal of the 1984 time-bar had argued that this would not respect “the freedom to contract”, that a marital property system excluding sharing was chosen deliberately “for well-considered reasons”, and that an extension of judicial discretion would encourage litigation and increase costs.

Those in favour said that women should not be allowed to contract themselves and their children into poverty and that they seldom made informed choices in these matters, because of power imbalances.

Judge van der Schyff said the main disadvantage of a marriage out of community of property without the accrual system - “a system of complete separation” - is that no matter how long the marriage has endured and how much the economically disadvantaged party had contributed to the other’s economic and financial success, that party does not as a right, share in the other’s gains.

Women were still predominantly in the position of the economically disadvantaged party.

She said the inclusion of the time-bar in the section of the Act was not, at the time, irrational, but the inequity it had caused had remained.

Responding to some of the submissions, she said: “It is, in my view, not necessary to determine whether the cut-off date affects black women to a greater extent than other women, or whether it is indeed an illusion to accept that women, in general, have a choice to agree to the inclusion or exclusion of the accrual system.

“Only those who go blindfolded through life can deny that gender equality has not yet been achieved in South Africa. The equality issue brought to the fore in this application is not solely attributable to race or gender or religion, but also to economic inequity,” the judge said.

She said unity of marriage concealed economic disparity. It only became apparent on divorce that one spouse’s estate had increased because of the other spouse’s contribution due to an unfair economic advantage.

It was patently unfair, she said, that those suffering from economic disadvantage who were married out of community of property, without accrual, after 1984, had no resource to the court to address this injustice.

She ruled that the time-bar in the section was unconstitutional.

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