‹ Back

South African Divorce Law Faces Unconstitutional Section: Implications for Stay-at-Home Spouses

 

 

**Introduction:**

In a groundbreaking ruling, the Constitutional Court of South Africa has declared a section of the Divorce Act unconstitutional, raising significant concerns for individuals married out of community of property without accrual. This decision has far-reaching implications, particularly for stay-at-home spouses who may find themselves at risk of financial ruin in the event of a divorce.

 

**Unpacking the Legal Landscape:**

The core issue at hand pertains to the principle that, under normal circumstances, a spouse married out of community of property without accrual cannot make claims from their partner's estate in the event of a divorce.

 

**Section 7(3) and Non-Financial Contributions:**

Section 7(3) of the Divorce Act introduced an exception to this rule, allowing courts to distribute assets more fairly when an individual can demonstrate a substantial non-financial contribution to the marriage. However, this provision applies only to marriages that took place prior to 1984 when South Africa introduced the option of marrying out of community of property with accrual.

 

**The Constitutional Court's Verdict:**

The Constitutional Court's decision builds upon a previous ruling by the High Court in Pretoria, which found the specific section in question to be unconstitutional. The apex court further determined that this section results in unfair and unjustifiable indirect discrimination, primarily affecting women. It's seen as gender-based discrimination since women are disproportionately impacted.

 

**Legislative Remedy Required:**

The Constitutional Court has given Parliament a 24-month window to address this legal defect. In the interim, the court has removed the previous cut-off date associated with this section, allowing it to be applicable to a broader range of cases.

 

**Implications and Limitations:**

It's essential to note that this ruling will not retroactively affect cases that have already been concluded. However, going forward, it represents a significant shift in divorce law in South Africa.

 

**An Additional Insight:**

In a related decision delivered alongside this case, the Constitutional Court also established that the disputed section should apply not only in cases of divorce but also when marriages end due to death.

 

**Frequently Asked Questions:**

 

1. Q: What does "marriage out of community of property without accrual" mean?

   A: This refers to a marriage in which spouses maintain separate assets throughout their union, and no communal estate is created. In the absence of an accrual system, there is no sharing of assets upon divorce.

 

2. Q: How will this ruling impact ongoing divorce cases?

   A: The ruling will not have a retrospective effect on cases that have already been concluded. It will, however, significantly influence future divorce cases, especially for individuals who made substantial non-financial contributions to the marriage.

 

3. Q: What is the significance of the Constitutional Court's decision regarding gender discrimination?

   A: The court's ruling highlights the disproportionate impact of the previous law on women, deeming it unjustifiable gender-based discrimination.

 

4. Q: What is the timeline for Parliament to address this legal defect?

   A: Parliament has been given 24 months to amend the law and bring it in line with the Constitutional Court's decision.

 

5. Q: Is this change in divorce law unique to South Africa?

   A: While divorce laws vary globally, this specific issue pertains to South African law. Other countries have different legal frameworks for handling divorce and property division.

 

6. Q: Can individuals who were married post-1984 now benefit from this ruling?

   A: Yes, the removal of the cut-off date allows individuals married after 1984 to potentially benefit from this legal change.

 

**In Conclusion:**

The Constitutional Court's decision to declare a section of the Divorce Act unconstitutional is a significant step toward achieving fairness and equity in divorce proceedings. It's a critical development in South African family law that will have lasting implications for stay-at-home spouses and those who have made substantial non-financial contributions to their marriages. As Parliament works to address this legal defect, it's clear that South African divorce law is entering a new era.

 

Contributor: Freddie Snijman, Chemcoolweb. I write about web design, blog management, blog monetization, Google services, domain name registration, online presence, hosting services, relationships, and chess.