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By Kobus Brits
Section 7(3) of the Divorce Act 70 of 1979 states as follows:
‘A court granting a decree of divorce in respect of a marriage out of community of property –
(a) entered into before the commencement of the Matrimonial Property Act, 1984, in terms of an antenuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded; [or]
(b) entered into before the commencement of the Marriage and Matrimonial Property Law Amendment Act, 1988, in terms of section 22(6) of the Black Administration Act, 1927 (Act No 38 of 1927), as it existed immediately prior to its repeal by the said Marriage and Matrimonial Property Law Amendment Act, 1988; … may, subject to the provisions of subsections (4), (5) and (6), on application by one of the parties to that marriage, in the absence of any agreement between them regarding the division of their assets, order that such assets, or such part of the assets, of the other party as the court may deem just, be transferred to the first-mentioned party.’
This was inserted into the Divorce Act post-1984, as a remedy to address the inequality. In Beaumont v Beaumont 1987 (1) SA 967 (A) at 987H – I, the court held that ‘the inequity which could flow from the failure of the law to recognise a right of a spouse upon divorce to claim an adjustment of a disparity between the respective assets of the spouses which is incommensurate with their respective contributions during the subsistence of the marriage to the maintenance or increase of the estate of the one or the other.’ Section 7(3) ‘seems to only be beneficial to marriages concluded in terms of South African law and meeting the requirements as set out in section 7(3) of the Divorce Act’ and persons married in terms of the Black Administration Act 38 of 1927 (Thulelo Mmakola Makola ‘A comparative legal analysis of the effects of divorce on marital property’ (LLM thesis, Unisa, 2018) at 34).
Christopher Forsyth is of the view that ‘the legislature, not having the private international implications in mind, had failed to make provision for the case of a marriage out of community but without an antenuptial contract’ (Christopher Forsyth Private International Law 5ed (Cape Town: Juta 2012) at 308). Our courts delivered conflicting judgments on the availability of s 7(3) to spouses in foreign marriages.
‘In Esterhuizen v Esterhuizen [1999 (1) SA 492 (C)] the parties had married in terms of Namibian law. The parties entered into an antenuptial contract in Namibia excluding community of property, community of profit and loss and accrual sharing. Upon their divorce in South Africa, the wife sought a redistribution order in terms of section 7(3) of the Divorce Act and a claim for maintenance’ (Makola (op cit) at 39). The court held that s 7(3) of the Divorce Act was not available to the plaintiff to achieve a redistribution of assets and further held that the court was not entitled to make a maintenance order. Relying on the decision of Frankel’s Estate and Another v the Master and Another 1950 (1) SA 220 (A) the court held that ‘in the absence of an antenuptial contract, the matrimonial property regime of spouses not domiciled in the same country at the time of marriage would be governed by the domicile of the husband at the time of entering into the marriage’ (Makola (op cit) at 39).
The court referred to Milbourn v Milbourn 1987 (3) SA 62 (W) in which the parties were married and domiciled in England without having entered into any form of an antenuptial contract. ‘The marriage, in terms of the English law, was automatically out of community of property and without accrual sharing’ (Makola (op cit) at 38). The plaintiff claimed a redistribution order in terms of s 7(3) of the Divorce Act. The court held that in the absence of an antenuptial contract, ‘the proprietary [consequences] of a marriage are irrelevant and a plaintiff claiming an order for the redistribution of the parties’ assets cannot rely on section 7(3) for redistribution of their assets’ (Makola (op cit) at 38).
Josman AJ considered Bell v Bell 1991 (4) SA 195 (W), which indirectly dealt with s 7(3). The couple had married in England, while the defendant was domiciled there. The parties subsequently acquired a domicile in South Africa and the plaintiff now sought a divorce and claimed the transfer of certain property to her in terms of ss 23 and 24 of the Matrimonial Causes Act 1973 (United Kingdom). As in the Milbourn, there was no antenuptial contract and the marriage was in terms of English law out of community of property. The court ‘granted such an order arguing that since the proprietary consequences of the marriage were clearly governed by English law, the wife was entitled to “the benefits available under the law of the husband’s domicile at the time of the marriage”’ (Christopher Forsyth Private International Law 4ed (Cape Town: Juta 2003)).
In the Bell case, Josman J disagreed with Kuper AJ that ‘in the absence of an antenuptial contract the proprietary consequences of a foreign marriage must be determined in accordance with the law of the matrimonial domicile’. Josman J applied the decision of the Frankel’s Estate case ‘that in the absence of an antenuptial contract, the matrimonial property regime of spouses not domiciled in the same country at the time of marriage would be governed by the domicile of the husband at the time of entering into the marriage’ (Makola (op cit) at 40).
In Lagesse v Lagesse 1992 (1) SA 173 (D), ‘the parties were married in Mauritius while the defendant was domiciled there and the proprietary consequences of their marriage would, therefore, be governed by the law of Mauritius’ (Makola (op cit) at 39). The parties had not concluded a formal antenuptial contract but made a declaration to the marriage officer to the effect that they wished their marriage to be governed by the provisions of the Status of Married Women Ordinance of 1949 (Mauritius).
The court held that the parties had been married out of community of property, the note to be interpreted as an express term of the agreement. Kriek J held: ‘It seems to me that a term incorporated into a contract by reference is as effectively a term of the agreement as one expressly included in the contract.’
The Esterhuizen case is not without criticism. Josman J referred to an article by Jan L Neels and Marlene Wethmar-Lemmer ‘Constitutional values and the proprietary consequences of marriage in private international law – introducing the lex causae proprietatis matrimonii’ (2008) TSAR 587, in which ‘Neels argued that section 7(3) may be utilised to effect redistribution of assets based on past contributions. This is a proprietary matter and, therefore, the use of section 7(3) is only available to marriages with South Africa as the matrimonial domicile’ (Makola (op cit) at 40). The Esterhuizen case is a divorce matter and governed by the lex fori.
‘The conclusion that the court came to was that the plaintiff was not entitled to invoke section 7(3) of the Divorce Act to effect a redistribution of assets based on past contributions. The court was, however, able to make an order in terms of section 7(2) of the Divorce Act for maintenance’ (Makola (op cit) at 41). ‘Redistribution of assets based on past contributions is indeed, therefore, classified by the court as a proprietary consequence of marriage’ (Makola (op cit) at 41).
‘Heaton and Schoeman do not support the decision in the Esterhuizen case. The authors’ argument is that the section 7(3) of the Divorce Act cannot be applicable to foreign marriages. The decision of the Esterhuizen – that one can claim for a redistribution order in the guise of a maintenance order – is flawed’ (see Makola (op cit) at 41).
In Hassan v Hassan 1998 (2) SA 589 (D) the parties were married and domiciled in Scotland at the time of the marriage and later emigrated to South Africa and established a domicile here. The central issues to be decided were the division of the proprietary rights and payment of maintenance to the plaintiff. The applicable application of the law ‘for the proprietary consequences of marriage was the law of Scotland’ (Makola (op cit) at 42). The court ‘held that redistribution orders formed part of proprietary consequences of marriage and that matrimonial domicile should govern patrimonial and maintenance aspects of divorce regulated by Scottish laws’ (Makola (op cit) at 42).
In the unreported matter of Lenferna v Lenferna (SCA) (unreported case no 120/13, 2-12-2013) (Zondi AJA), ‘Neels and Fredericks state that whether the parties … could be able to apply for redistribution would depend on whether redistribution is qualified as a proprietary issue or as a divorce issue or a hybrid proprietary/divorce issue. A hybrid proprietary/divorce issue is governed partially by the proper law of the proprietary consequences of marriage and by the lex fori. When considering reasonableness and fairness for classification of section 7(3), in some instances it would indicate proprietary classification and in other instances a divorce issue’ (Makola (op cit) at 45).
‘Redistribution orders based on the South African Divorce Act may only be relied on by parties whose marriage is governed by a foreign law if such redistribution orders are classified as divorce matters. If redistribution orders are classified as proprietary consequence of marriage, the lex domicilii matrimonii will govern redistribution, if redistribution is applicable in that foreign matrimonial domicile’ (Makola (op cit) at 48).
‘The current connecting factor for proprietary consequences of marriage is unconstitutional. …The rule is discriminatory as it is against the right to equality. … It is proposed that a suitable alternative connecting factor be found through conducting relevant comparative research in this field. … Authors have criticised the rule on various grounds’ (Makola (op cit) at 46 – 47).
Kobus Brits LLB (cum laude) (Unisa) Dip Labour Law (UJ) is the office manager at Theron Inc in Johannesburg. Mr Brits writes in his personal capacity.
This article was first published in De Rebus in 2023 (Oct) DR 20.
