Family Law: Landmark Judgement on the Divorce Act Provides Hope for Divorcees Married Out of Community of Property Without the Accrual System

On 11 May 2022, the Gauteng High Court delivered a landmark judgment in the case of Greyling v Minister of Home Affairs and others, which has declared Section 7(3)(a) of the Divorce Act unconstitutional. This section barred those married out of community of property without the accrual system after 1984, from benefiting from what they might have contributed to the marriage on divorce.

Prior to 1 November 1984, there were only two marital regimes in South Africa; in community of property, and out of community of property. In community of property allows for spouses to share in all assets and liabilities, while out of community of property entails complete separation of all assets and liabilities.

This changed with the enactment of the Matrimonial Property Act (MPA), which introduced the connect of ‘accrual sharing’. In light hereof, a section, being section 7(3)(a), was introduced to the Divorce Act, giving judge’s discretion in ordering the distribution of assets for marriages out of community of property which had been concluded before the enactment of the MPA, when the accrual regime did not exist. However, the Divorce Act does not allow a judge to make any order regarding the redistribution of assets for couples married out of community of property, without the accrual, who were married after 1 November 1984.

This had the effect of many people being left financially constrained upon divorce, regardless of how long the marriage lasted and despite them having contributed to the household, looking after minor children, or assisting their spouses in accumulating assets over the years.

This section has now been declared inconsistent with the Constitution and invalid to the extent that the provision limits the operation of Section 7(3) of the Divorce Act. This judgement, once confirmed by the Constitutional Court, allows spouses married out of community of property without the accrual after 1 November 1984 to claim assets in a divorce based on provable contributions they made to the marriage, through the Courts discretion.

The case was brought by the Mrs Greyling, the wife of a wealthy farmer, who was married out of community of property, excluding accrual, in March 1988. Mrs. Greyling submits that unless this application is successful, neither she nor other spouses in a similar position are entitled to apply for a redistribution order on divorce, irrespective of their particular circumstances and no matter how stark the injustices they face are.

Counsel for Mrs Greyling submitted that excluding spouses from the potential benefits of just and equitable redistribution constituted unfair discrimination, based on sex, gender, marital status, culture, race and religion.

“As a result, it operates to trap predominantly women in harmful and toxic relationships when they lack financial means to survive outside marriage,” it was submitted.
In addition to this, an expert report submitted to the court which sketches the context of gender inequality in South Africa, said that many women were still unable to access and realise their rights and “the decision to get married is therefore one that many women make with less autonomy than men, and with less agency to insist on terms that would be advantageous to them”.

The Minister of Justice and Constitutional Development stated that public comment was received on the issue, in which the following aspects were raised by those in favour of the extension of judicial discretion past the 1984 time-bar:

1. Women cannot be allowed to contract themselves and their children into poverty;
2. Women entering into an antenuptial contract with an express exclusion of the accrual system are seldom making an “informed choice”;
3. There is a power imbalance between the parties;
4. Our law recognises the imbalance between other contracting parties, such as employer and employee and has legislated to protect the weaker party.

While those opposed to the extensions of judicial discretion argued that, amongst other aspects, that it would not respect the freedom to contract, that it was chosen for well-considered reasons, and that an extension of judicial discretion would encourage litigation and increase costs.

Judge Van der Schyff stated that the inclusion of the time-bar in the section of the Act was not, at the time, irrational, but the inequity it had caused had remained.
It was further stated: “Only those who go blindfolded through life can deny that gender equality has not yet been achieved in South Africa. The equality issue brought to the fore in this application is not solely attributable to race or gender or religion, but also to economic inequity.”

The judge declared it patently unfair that those suffering from economic disadvantage who were married out of community of property without accrual, after 1984, had no recourse to the court to address this injustice.

As such, it was ruled that the time-bar in the section is inconsistent with the Constitution and invalid, and that discretion ought to be extended past the 1984 time-bar. The judgment has been referred to the Constitutional Court for confirmation, proving to be a landmark case and a significant win for those married out of community of property without the accrual system.

Written by Leigh-Anne Kriel; lkriel@dkvg.co.za
Leigh-Anne Kriel is a Candidate Attorney in the litigation department.

For all your family law queries, contact an attorney at DKVG in the family law department: gvniekerk@dkvg.co.za ; rvisser@dkvg.co.za

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