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  • Writer's pictureKeegan Shaw

High Court ruling has massive impact on marriage regimes and divorce law in South Africa

On 11 May 2022, the Gauteng High Court handed down a judgement in the matter of Greyling v Minister of Home Affairs and Others, declaring section 7(3)(a) of the Divorce Act, No. 70 of 1979 (hereinafter referred to as “the Divorce Act”) unconstitutional. The question posed to the Court was whether it is constitutional for spouses married out of community of property, with the exclusion of the accrual system after 1 November 1984, to be deprived of the relief provided for in section 7(3) of the Divorce Act.


To this end, Section 7(3)(a) of the Divorce Act states:

“(3) 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 Matrimonial Property Act, 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 subsections (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 Court has no power to apply its discretion in terms of the above-mentioned section where marriages were concluded out of community of property, with the exclusion of the accrual system, after 1 November 1984. In this matter, the Applicant submitted that Section 7(3)(a) arbitrarily and irrationally differentiates between people married before and after 1 November 1984, being the date on which the Matrimonial Property Act, No. 88 of 1984 (hereinafter referred to as “the Matrimonial Property Act”) commenced.


As a result of Section 7(3)(a), many people married out of community of property with the exclusion of the accrual system, have been left financially constrained upon divorce, regardless of how long the marriage lasted and despite them having contributed to the household, caring for the minor children, or assisting their spouse with the growing of their estates.


The Court had to look at the constitutional validity of Section 7(3)(a), with reference to Sections 9(1) and (3) of the Constitution. In terms of Section 9(1), all persons in similar positions must be afforded the same rights. Section 9(3) required a more thorough test to determine if there is unfair discrimination. The Court applied a two-stage test applicable where there is an allegation that a particular legislative rule violates section 9(3). The first stage was to determine whether the rule differentiated between people or groups, and whether the differentiation amounted to discrimination. Once it was determined, the second stage was to determine whether or not the discrimination was unfair (the aforesaid test established in Harksen v. Lane N.O. & Others). The Court found that the differentiation, in terms of Section 7(3)(a), amounted to unfair discrimination based on the date on which a marriage was concluded.


The Court ordered that Section 7(3)(a) of the Divorce Act be declared inconsistent with the Constitution and invalid to the extent that the provision limits the operation of the section to marriages out of community of property entered into before the commencement of the Matrimonial Property Act. The inclusion of the words “entered into before the commencement of the Matrimonial Property Act, 1984” in the section, be declared inconsistent with the Constitution and invalid. Lastly, that the section is now to be read as though the words “entered into before the commencement of the Matrimonial Property Act, 1984”, do not appear in the section.


The judgment has been referred to the Constitutional Court for confirmation. Should the judgment of the High Court be confirmed, the case will prove to have a significant impact to South African marriages and divorces where spouses were married out of community of property and excluding the accrual system, after 1984.

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