08 May 2023 – LRC to make submissions in Divorce Act constitutional challenge

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For Immediate Release

02 May 2023

LRC to make submissions in Divorce Act constitutional challenge

JOHANNESBURG – The Legal Resources Centre will present arguments to the Constitutional Court on behalf of the Commission for Gender Equality regarding the confirmation application on Wednesday, 10th May. The confirmation application seeks to challenge the constitutionality and validity of section 7(3) of the Divorce Act 70 of 1979.

The order before the court for confirmation was handed down in the Pretoria High Court in May last year. The applicant, Mrs G, lodged the application with the court while undergoing divorce from her husband of 30 years. She sought to stay her divorce proceedings so that she may challenge the constitutionality of the Divorce Act which, if successful, would have significant bearing on the outcome of both her own divorce and the divorces of countless others in her position.

The challenge to the Divorce Act is specifically focused on section 7(3), which empowers courts to make a redistribution order of assets from one spouse to another in a divorce case where parties were married out of community of property. This order is only granted if the court considers it just and equitable, based on the contributions made by one spouse towards the growth or maintenance of the other spouse’s estate, such as through the provision of services or savings on expenses.

This discretion is, however, restricted by section 7(3)(a) which limits the applicability of the provision to marriages concluded before the commencement of the Matrimonial Property Act in 1984. Thus, marriages out of community of property entered into after 1 November 1984 could not be subject to a redistribution order between spouses upon divorce, as was the case for Mrs G.

The application in the high court sought an order declaring section 7(3)(a) unconstitutional and invalid to the extent that it limits the application of section 7(3) to marriages entered into before 1 November 1984. The grounds for this declaration being that the restriction arbitrarily and irrationally differentiates between people married before and after the cut-off date. Under the current system, the potential protections afforded by section 7(3) are afforded to some and denied to others, merely on the basis of the date a marriage was concluded.

It was further argued that the restriction disproportionately affects women who often do not enter into marriages on an equal footing or do not often in practice have the same degree of agency as men to insist on equitable and financially beneficial terms of marriage. This is due to stark historical and ongoing gender inequalities that impede parity when concluding a marital or antenuptial contract.

Van der Schyff J found the offending provision unconstitutional in that its exclusionary application constituted unfair discrimination. The order was granted, with the cut-off date being notionally severed from section 7(3)(a) of the Divorce Act. The matter has now been referred to the Constitutional Court to confirm the declaration of constitutional invalidity.

The LRC has intervened as amicus curiae in the confirmation proceedings acting on behalf of the Commission for Gender Equality, whose submissions support the declaration of constitutional invalidity. These submissions will focus on South Africa’s international law obligations, and approaches taken by foreign jurisdictions. The goal is to demonstrate how the current application of section 7(3) to all antenuptial contracts is justifiable, while expanding its application to all marriages would promote substantive equality.

The decision to intervene on behalf of the Commission for Gender Equality was motivated by the opportunity to support the equality considerations relevant to the division of matrimonial property before the court. The reasons are more compelling since pre-constitution law forcing parties to seek redress by individual litigation visits a heavy burden on the parties and the legal system constrained by pre-constitutional law. In the era of emancipation, the reality of women’s lives in our country may be distinguished from the lives of women in advantaged socio-economic households and economies. Our legacy of differential access to opportunities for the majority requires protection in the face of gender blind and neutral laws that cut off reasonable means of access to property. The potential to own and control property is intrinsically linked to the power to self-determination and access to decision making, essential to substantive equality but articulating unpaid contributions and claims to marital property during marriage is often difficult without the financial means to secure quality legal representation.

The amicus curiae intervention forms part of the fulfilment of the LRC mandate to address injustices, combat discrimination and restore women’s dignity in the division of marital property that is consistent with our Constitution and regional and international obligations.

Evidence demonstrates that women traditionally bear greater responsibility for housework, childbearing, and rearing, and even if they are employed, usually earn less than men. Black women earn even less than their white counterparts with far fewer opportunities to obtain financial security through paid work and thus suffer discrimination on multiple grounds due to gender blind and neutral law. Despite championing for equal opportunities and changing legislation – this gap persists in our economic climate. Legislating against gender neutral laws and practices is necessary and proactive in fulfilling the legislative obligation to substantive equality for all women.