On 11 May 2022 the High Court ruled section 7(3)(a) of the Divorce Act of 1979 unconstitutional in the case of Greyling v Minister of Home Affairs and four others, 40023/21, causing a series of legal opinions. The judgment was referred to the Constitutional Court to confirm its correctness in terms of section 167(5) of the Constitution. The judgment is still pending. This article discusses the main aim of section 7(3)(a) and the validity of the High Court judgment.

The Matrimonial Regimes

In South Africa prior to 1984 only two marital regimes were available, namely:

1. In Community of Property which allows parties to share equally their profits and losses. Upon divorce the assets are equally divided unless forfeiture is claimed.

2. Out of Community of Property (complete separation) where parties’ assets are not included in the marriage. This means that each spouse has their own separate assets and they don’t share profits or losses. This is made certain by an Antenuptial Contract that is signed by the spouses before marriage.

In 1984 a new matrimonial regime, the Accrual system was introduced by the Matrimonial Property Act 88 of 1984 (MPA) . The Accrual system enables spouses to either include or exclude the accrual system.

3. The Accrual system allows parties to share in the profits/ growth of the estate while keeping their own assets.

The accrual system came with a new judicial discretion, section 7 (3) (a) of the Divorce Act 70 of 1979 to give judges in divorce matters the power to distribute the assets of spouses in marriages out of community of property entered into before 1 November 1984 . Section 7 (3) (a) dictates that a court granting a decree of divorce in respect of a marriage out of community of property— (a) entered into before the commencement of the MPA, 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, may, subject to the provisions of subsection (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 the assets of the other party as the court may deem just, be transferred to the first mentioned party .

The aim of section 7 (3) (a) was to cater for spouses who did not previously have the option of accrual. This provision was intended to address the unfairness in the existing marital regimes that were too rigid. The discretion was for that reason only available for those spouses married out of community of property prior to the commencement date of the legislation, on 1 November 1984.

A case of interest, Karen Rita Greyling v Minister of Home Affairs and others, suggests that a redistribution discretion should be available in all marriages out of community of property without the accrual system, irrespective of the dates on which these marriages were concluded. The court was called upon to determine the constitutionality of section 7 (3) in excluding spouses married out of community of property without the accrual system after 1984 .

The applicant, Mrs Greyling, was married in 1988, four years after the commencement of the MPA. She married a wealthy farmer out of community of property excluding the accrual system. Mrs Greyling was a housewife who took care of their children and household chores. However, as a result of abuse, the couple separated. The court was not called upon to decide whether Mrs Greyling was entitled to a redistribution order but to determine whether section 7 (3) (a) of the Divorce Act, which deprived her of such relief, was constitutional. Mrs Greyling’s attack was twofold. The section arbitrarily and irrationally differentiated between spouses married before and after 1 November 1984 when the MPA commenced.

The cut-off date has disproportionate discriminatory consequences for women. Mrs Greyling’s argument was that in the context of gender inequality in South Africa, women tend to enter marriages in a weaker
bargaining position than men and as a result have less autonomy to contract on terms that would be favourable to them. This results in exploitation during the marriage by heteronormative standards which reinforce an unequal adjustment to matrimonial property regimes and women are disproportionately disadvantaged.

The court declared that section 7 (3) (a) was unconstitutional due to its wording, “entered into before 1984”. In deciding the validity the court analysed firstly whether the section differentiates between people on grounds that amount to discrimination, and secondly whether the discrimination was unfair. The court ruled that there is no legitimate reason justifying the differentiation between spouses married before and after 1 November 1984, further stating that the section operates to trap predominantly women in harmful and toxic relationships when they lack the financial resources to survive outside the marriage.

The main purpose of secion 7(3) is to redress a deficiency of financial imbalance to allow spouses who were affected by marital power to acquire their rightful shares in the accumulated wealth of their joint endeavours. South Africa’s history of patriarchal marital power was the factor for this judicial discretion. I support the Pretoria Attorneys’ Association’s contention, who were admitted as amicus curiae on the Greyling case, that there is no evidential basis to prove that women are generally in a weaker bargaining position than men or that women lack an understanding of the consequences of entering into an antenuptial contract. Choosing a marital regime affords spouses the freedom to contract so as to protect their interests. Judicial discretion would promote legal uncertainty. Parties would not be able to protect their interests in marriages, resulting in a lacuna in our law.

The MPA provided the option of choosing between a system that includes accrual sharing and a system that excludes accrual sharing and parties seemingly exercise a deliberate choice.

The High Court erred in declaring section 7 (3) (a) of the Divorce Act 70 of 1979 unconstitutional as this will cause discrimination for spouses in that it overlooks the freedom to contract and the reason behind marital regimes in protecting assets. The Greyling approach should only be considered as a guide to provide a remedial section empowering courts to interfere where spouses stand to be economically impacted by virtue of their marital regime.

This proposed section would not be alien to South African law as courts continue to deviate from the strict application of property regimes as seen in both section 9 of the Divorce Act which deals with forfeiture of patrimonial benefits of a marriage and section 8 (2) of the MPA which gives a court power to order division of accrual. In order to consider the High Court judgment the Constitutional Court will need to conduct thorough research on the consequences of the High Court’s judgment on marriages in South Africa.

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