By Lehlohonolo Lehana.
The Constitutional Court has upheld a previous ruling from the High Court in Pretoria that found Section 7 (3) of the Divorce Act invalid and unconstitutional.
The apex court handed down judgment on Tuesday,
Section 7(3) of the act allows the courts to divvy up the assets in a more fair and equitable way if that individual can show they made a significant non-financial contribution to the marriage.
But this only applies if they were married pre-1984, when the option of marriage out of community of property with accrual was introduced in South Africa.
The apex court concluded that the differentiation between individuals who entered into a marriage, and an antenuptial agreement, before and after the commencement of the Matrimonial Property Act constitutes unjustifiable and indirect discrimination.
Explaining the order, senior associate in family law at Adams and Adams Shani van Niekerk says the Constitutional Court further found that the section discriminated against women.
“Very often women are not in the position to negotiate agreements when they get married and therefore, there’s discrimination against women. So, the court found the discrimination was indirectly based on gender.”
The challenge was instituted by a farmer’s wife who approached the high court when her 30-year marriage was coming to an end.
The woman argued she had contributed significantly to the growth of her husband’s estate through her non-financial contributions to the home, and raising of their three children.
She also said she had been instructed by her father-in-law, at the time of the marriage in 1988, to sign an antenuptial agreement which was out of community of property without accrual.
The Constitutional Court has given Parliament 24 months to remedy the error in the legislation.
However, pending the rectification, parties are entitled to claim in terms of Section 7 (3).
Van Niekerk believes the order paves the way for future amendments in family law.
“I think it’s a matter of time until someone approaches the court and says, ‘I am married with the accrual, but this and that is unfair…I definitely don’t think this is the end of the road,” she said.
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.
“Its 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.”