Women are often seen as the economically disadvantaged partner in some marriages where, for reasons as agreed to between the spouses, women quit their jobs and become homemakers (which includes staying at home to take care of the children and other household functions). Unfortunately, this economic disproportion often plays a huge role when parties decide to get divorced, sometimes leaving women financially stranded.
This is more relevant in marriages that are out of community of property excluding the accrual system where each party retains and leaves the marriage upon divorce with their separate estates that they grew throughout the marriage. This means that women who entered into a marriage out of community of property without the accrual system, leave the marriage without any assets despite their contribution towards the other spouse's financial growth.
The Divorce Act provides limited relief
Section 7(3)(a) of the Divorce Act 70 of 1979 (“Divorce Act”) comes to the rescue by giving the court, during divorce proceedings, the discretion to redistribute the separate estates between the two spouses to relieve any unfairness towards one of the spouses (“redistribution order”). The spouse who asks for the redistribution order must prove that s/he contributed during the marriage to the maintenance or the growth of the other spouse's estate, for example, through the rendering of services and saving expenses.
However, this redistribution order can only be applied in cases of a marriage entered into out of community of property without the accrual system before 1 November 1984. Which means that spouses in similar positions who got married after this date, do not get the same protection under the law.
Application to declare section 7(3)(a) of the Divorce Act invalid
Section 7(3)(a) of the Divorce Act came under the magnifying glass in the High Court (“HC”) case of K G v Minister of Home Affairs and Others (2022) ZAGPPHC 3 (11 May 2022) where the wife disputed the constitutional validity of this section.
The wife and her husband were married out of community of property, excluding the accrual system, in March 1988. During divorce proceedings, she approached the HC to declare this section unconstitutional and invalid to the extent that it excludes marriages out of community of property, excluding the accrual system, that were entered into after 1 November 1984.
The basis of her argument was that the section infringed her right to equality under section 9 of the Constitution and amounted to unfair discrimination between spouses married before and after 1 November 1984.
In this case, the wife contributed towards the marriage and her husband's wealth that was attained throughout the marriage, through her support (energy and time) as a homemaker. However, just because they got married in 1988, she does not qualify for the relief under section 7 of the Divorce Act.
The HC considered arguments that spouses who cannot benefit from a redistribution order under section 7 of the Divorce Act, can still apply for spousal maintenance to be paid after the divorce. Judge van der Schyff provided the following in her judgment:
“Everyone has an inherent dignity and the right to have their dignity respected and protected. An economically disadvantaged party's dignity is implicitly impaired when that party's contribution made on the basis of the marriage is not recognised and he or she is left to claim maintenance alone.”
After considering all the facts and circumstances, the HC declared that section 7(3)(a) of the Divorce Act is inconsistent with the Constitution and invalid to the extent that the provision limits its application to only marriages entered into before 1 November 1984. This has the effect that spouses married out of community of property, without the accrual system, can apply for a redistribution order if they comply with the requirements, regardless of when they entered into the marriage.
This declaration is currently referred to the Constitutional Court for confirmation and does not immediately come into effect. Should the Constitutional Court confirm the invalidity of section 7(3)(a) of the Divorce Act, it will not have any binding effect on previous divorces and will only impact future divorces.
This judgment appears to be a significant win for married women who are economically disadvantaged in marriages. Women married out of community of property and without the accrual system might soon benefit upon divorce from their husband's assets if they comply with the requirements under the Divorce Act. It must, however, be noted that this judgment and the Divorce Act refer to a “party” and does not limit the right upon a specific gender. This means that in the case where the husband is the economically disadvantaged party, he may equally benefit from the relief provided.
Did you know… In certain instances, you can apply for assets to be redistributed upon divorce where spouses had separate estates due to being married out of community of property.