Page 28 - SA Chamber UK-NOV News letter 2023

The limitation was not justifiable in terms of section 36 of the Constitution. The High
Court rejected an argument that the differentiation was not on the basis of marital status

but merely on the basis of differing marital benefits depending on whether the marriage
was dissolved by divorce or death.

On 11 May 2022, the Pretoria High Court declared that Section 7(3)(a) of the Divorce Act
is inconsistent with the Constitution and invalid as it amounts to unfair discrimination in

respect of out of community of property marriages.

On 10th October 2023, the Constitutional Court confirmed the High Court order and
it declared that section 7(3)(a) of the Divorce Act is inconsistent with the Constitution
and invalid to the extent that it fails to include marriages concluded on or after the
commencement of the Matrimonial Property Act 88 of 1984 (Matrimonial Property Act).

This means that spouses married out of community of property after 1st November
1984 will be treated equally in a divorce after the landmark ruling handed down by the
Constitutional Court.

However, the declaration of invalidity is suspended for a period of 24 months from the
date of this order to enable Parliament to take steps to cure the constitutional defects
identified in this judgment.

As such, a spouse married with an antenuptial contract without accrual after 1st November

1984 will also be entitled to seek a redistribution of assets. However, the spouse seeking
the redistribution will still need to prove that it is just and equitable for the court to make
such a redistribution.

- By Deborah Di Siena, a Senior Partner at Di Siena Attorneys

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SA CHAMBER UK NEWSLETTER NOVEMBER 2023