Big shake up for divorces coming to South Africa
The South African government will soon need to amend the nation’s divorce legislation after the Constitutional Court found one section of the Divorce Act of 1979 to be inconsistent with the
Constitution and invalid.
In the matter between EB (born S) vs ER (born B) and Others; KG v Minister of Home Affairs and Others [2023], the Constitutional Court unanimously declared section 7(3) of the Divorce Act inconsistent with the Constitution, upholding a previous Gauteng High Court Ruling.
Ilze Strydom from PH Attorneys said that spouses who entered into a marriage out of community of property with the exclusion of the accrual system after November 1984 will now have the ability to claim a redistribution of assets in the event of divorce.
“The judgment extends the relief in Section 7(3) of the Divorce Act to marriages out of community of property with the exclusion of the accrual system entered into after November 1984 and also to marriages dissolved by way of death and not only divorce,” Strydom said.
“The effect of the judgment is that a divorcing party who is married out of community of property with the exclusion of the accrual system may now claim for a redistribution, whereby the assets, or such part of the assets of the other spouse, which the court may deem just, is transferred to him/ her at divorce.”
“Further to this, where a marriage is dissolved by the death of a party to the marriage, a court may, on application by a surviving party to the marriage or by the executor of the estate of a deceased spouse, order a redistribution of assets.”
However, the Court ruled that the declaration of invalidity be suspended for two years, allowing Parliament time to amend the constitutional flaws in the Act.
The Constitutional Court Judgement can be found here.
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