ConCourt declares section of Divorce Act unconstitutional

The Constitutional Court has declared a certain section of the Divorce Act unconstitutional.

The apex court handed down judgment on Tuesday, upholding a previous ruling from the High Court in Pretoria that found Section 7(3) of the act was unconstitutional.

The court ruled that Section 7(3) of the Divorce Act creates a “differentiation between marriages concluded out of community of property that are terminated by divorce and by death on the other.”

(9/9) 1984. (CCT 364/21 and 158/22 EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others pic.twitter.com/XE6w2ALhgZ

— Constitutional Court (@ConCourtSA) October 10, 2023

Unconstitutionality

This effectively means that this section of the Divorce Act provides that where spouses married out of community of property get divorced, the court may make an equitable order that leaves stay-at-home wives with nothing.

However, this was only available to marriages before 1 November 1984, because marriages entered into after this date would be automatically subject to accrual, meaning individuals cannot claim from their spouse’s estate unless an antenuptial contract excluded this.

Before 1984, spouses married out of community of property benefited from a special redistribution agreement when getting divorced. However, those who married after 1984 did not enjoy this benefit regardless of their financial or non-financial contribution to the marriage.

The Court has set section 7 (3) of the Divorce Act aside and given Parliament 24 months to amend it in line with the judgment.

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CGE welcomes ruling

Meanwhile, the Commission for Gender Equality (CGE), admitted as the court’s friend, welcomed the ConCourt’s ruling.

CGE argued that many married women don’t contribute financially to their marriages but have taken care of their households.

“It’s common cause that women who enter into marriages have less bargaining power because of cultural, religious and economic inequality. Failure to change this does not correct the exploitation of women’s care and domestic labour to the structural advantage of men.”

The CGE urged Parliament to immediately commence with legislative processes to amend section 7 (3) of the Divorce Act.

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