Section 7(3) of the Divorce Act 70 of 1979 provides a mechanism for the redistribution of assets upon divorce for marriages entered into before the Matrimonial Property Act of 1984. Specifically, it allows a court to order a redistribution of assets if it is just and equitable, considering the contributions made by each spouse during the marriage.
On 10 October 2023, the Constitutional Court (in EB v ER NO and Others) declared that section 7(3) of the Divorce Act 70 of 1979, was inconsistent with the Constitution and invalid because it discriminates against certain marriages based on their date of commencement. This means that marriages concluded after this date are excluded from the equitable redistribution of assets upon divorce. The Court further found this differentiation to be an indirect discrimination based on gender, as it often left women in a financially weaker position. The order of invalidity was suspended for a period of 24 months to enable Parliament to take steps to cure the constitutional defects identified in the judgment.
This case came after the Constitutional Court’s decision to declare section 7(3) unconstitutional and invalid. The court had to determine whether the defendant was entitled to a redistribution order under Section 7(3) of the Divorce Act and whether the defendant was entitled to spousal maintenance.
FACTS
This case centered around the divorce of HC and CC. The plaintiff (HC) and the defendant (CC) were married on February 17, 2007, and their marriage was out of community of property with the exclusion of the accrual system. They had one minor child.
The plaintiff initiated divorce proceedings, citing an irretrievable breakdown of the marriage. The defendant sought an order for redistribution of the plaintiff’s assets under Section 7(3) of the Divorce Act, and spousal maintenance, arguing that she had contributed to the maintenance and increase of the plaintiff's estate by performing domestic duties and child-rearing.
The plaintiff argued that redistribution was an extraordinary remedy, especially in circumstances where the seeking party had the option, when getting married, to elect which accrual system would apply to their marriage. As to the defendant’s claim for spousal maintenance, the plaintiff argued that there was nothing stopping the defendant from seeking employment and he could not afford to pay spousal maintenance.
LEGAL CONTEXT
Section 7(3) empowers the court to order the transfer of assets from one spouse to another if it deems such a transfer just and equitable, particularly when one spouse has contributed directly or indirectly to the maintenance or increase of the other spouse's estate during the marriage. Section 7(4) specifies the criteria the court must consider when making a redistribution order under Section 7(3), including the existing means and obligations of the parties, any donations made by one party to the other during the marriage, and any other relevant factors.
FINDINGS
Redistribution Order – the court found that the defendant's contributions as a homemaker and primary caregiver were sufficient to warrant a redistribution order. The court emphasised that the defendant's role enabled the plaintiff to pursue his career and accumulate assets.
The court emphasised that section 7(3) must be interpreted in light of the Constitution, which aims to achieve substantive gender equality. The court also rejected the notion that contractual freedom (in that the defendant had a choice in which matrimonial regime would apply to the marriage) should be decisive in this setting as an antenuptial contract was not an ordinary commercial agreement and many women enter marriages as poorer and less financially independent.
Spousal Maintenance – the court took into account the defendant's financial dependency on the plaintiff and her limited prospects of securing employment given her age (51), lack of qualifications, and long absence from the labour market. The court awarded spousal maintenance to provide her with short term financial support post-divorce. The court stressed that the overriding aim of section 7(3) was to equitably address the plight of the stay-at-home spouse after divorce and to prevent gender inequality.
JUDGMENT
The court granted the transfer of ownership of one of the plaintiff's three properties to the defendant. The plaintiff was ordered to pay spousal maintenance in the amount of R 10 000 per month until August 2025. The court awarded joint parental rights and responsibilities but designated the defendant as the primary caregiver of the minor child. The plaintiff was also ordered to contribute to the child's maintenance and educational expenses.
The court's decision reflects a progressive interpretation of Section 7(3) of the Divorce Act, aligning with constitutional principles of gender equality and fairness. The judgment emphasises the importance of recognizing non-financial contributions in a marriage, particularly where one spouse may forego career opportunities to manage the household and care for children.
PRACTICAL IMPLICATIONS / EFFECT OF THE JUDGMENT
This judgment, and the landmark judgment in in EB v ER create precedent and may lead to increased claims for redistribution orders and spousal maintenance in similar cases. With the deadline fast approaching for the legislature to cure the constitutional defect in section 7(3), it is another step towards the achievement of gender equity in marriages.
In EB v ER, the Constitutional Court ordered that, pending legislative changes, subsection (1), paragraph (a) of subsection 7(3) is to be read as excluding the following words: “before the commencement of the Matrimonial Property Act, 1984”. Additionally, the order in EB v ER does not affect the legal consequences of matters finalized before the date of that Court’s order thus creating legal certainty.
CONCLUSION
This case illustrates our courts’ continuous effort to ensure equitable financial redress post-divorce. The judgment reflects a progressive interpretation of Section 7(3) of the Divorce Act, particularly in recognising the non-financial contribution of a female spouse. The judgment further demonstrates the courts willingness to rule on matters in line with the constitutional principles of gender equality and fairness while the legislature is tasked with curing legislative defects. While this particular defendant had the resources to approach a court for relief many women do not have such access to justice, and it will definitely be up to the legislature to ensure that women are able to obtain equitable financial redress.
