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I read Alick Costa’s (the author’s) article titled ‘Are women still disadvantaged when it comes to s 7(3)(a) of the Divorce Act?’ (2023) May DR 26, where he responded to my earlier article titled ‘Is the divorce court’s discretion to transfer assets as per the Divorce Act unconstitutional?’ (2022) Nov DR 18. The author appears to take issue with what he regards as my criticism of the joint report that was prepared and relied on by the court in G v Minister of Home Affairs and Others (Pretoria Attorneys Association as Amicus Curiae) [2022] 3 All SA 58 (GP). The author argues that ‘[t]he criticism of the joint report of the experts and acceptance thereof by the court is unjustified and the reasons advanced are unconvincing’. It appears that the author misconstrued my argument in respect of the expert report that the court relied on. In this article, I respond to the author’s article with a view to clarify the argument I advanced in my earlier article.

Contrary to the author’s contention, I did not criticise the expert report, but the court’s reliance on the report without seriously engaging its methodology and grounds on which its assumptions were made. I argued that ‘[w]hether academic experts are right or wrong in their assumptions is immaterial. When faced with academic opinion, the court must critically assess the basis on which the opinion is founded’. I further argued that ‘[p]erhaps extensive research regarding the position of women in marriages and reasons that motivate them to get married needs to be conducted. Academic assumptions, which are not empirically tested may not adequately reflect the reality of these women’.

Most importantly, I submitted that ‘[i]t is important that when the CC [Constitutional Court] considers this matter, it adequately evaluates available research and expert opinion to reach a just decision’. To achieve this, I argued that ‘[s]hould the CC wish to entertain this matter, various interest groups should be allowed to participate as amicus to ensure that a well-considered judgment is delivered having regard to the policy and legislative implications of this matter’. In this regard, the basis of the author’s disagreement with my approach is not entirely clear.

The author argues that ‘[s]adly, the inequality and its negative financial consequences particularly for women who are married excluding the accrual system still exists’. Further that notwithstanding the slow progress in the emancipation of women, exploitative patriarchy is still dominant and will not change until there is a change in social attitudes. Most importantly, he submits that ‘generally speaking, wives are still the victims of domestic enshacklement, disempowerment and financial bondage’. The financial disparity on gender grounds in marriages is a historical fact that cannot be questioned. ‘[E]conomic inequality is not gender neutral’ (Daria Tisch and Philipp M Lersch ‘Distributive Justice in Marriage: Experimental Evidence on Beliefs about Fair Savings Arrangements’ (2021) 83 Journal of Marriage and Family 516 at 521).

Notwithstanding this, to avoid persons who are not currently disadvantaged from taking advantage of well-known previous disadvantages experienced by women, courts should encourage parties to furnish them with extensive research on current challenges experienced by parties in different kinds of marriages. Courts should not hesitate to invite amicus curiae with proven research capabilities to make submissions on current societal and marital realities. While the High Court had the benefit of largely the doctrinal research conducted by two experts, there is no reason for the CC not to request further or alternative research. As highlighted in my earlier article, the High Court failed to heed the amicus request not ‘… to consider a complex and multi-layered legal aspect without the benefit and availability of statistics and broad-based or other empirical research such as research by the [South African Law Reform Commission]’. The CC is duty bound to engage this request to fully understand the current position in South Africa (SA).

South African courts have begun to adjudicate divorces where women are financially stronger spouses, which is a clear demonstration of some progress that has been made (see BR v DR (WCC) (unreported case no 14189/2022, 17-3-2023) (Kusevitsky J)). The danger with the general gendered approach is the potential of financially well-off women taking advantage of the law meant to protect currently financially weaker spouses, most of whom are women in practice. A better approach is to create sustainable laws and jurisprudence that will protect financially weaker spouses, irrespective of their gender. Vulnerable women will automatically benefit without excluding financially weaker men in marriages. There is no debate that generally women are still financially vulnerable within marriages, but we cannot pretend that this is the reality of all women within marriages. Courts cannot be expected to generally view women in divorces as automatically deserving of protection without assessing their actual personal economic conditions. Available research demonstrates that ‘[t]he country introduced nearly 20 reforms increasing women’s economic inclusion between 1990 and 2020’ (Nisha Arekapudi and Natália Mazoni Silva Martins ‘Challenging entrenched marital power in South Africa’ (https://documents1.worldbank.org, accessed 1-7-2023).

According to the author, I did not advance reasons for my contention ‘… why a universal partnership in which financial relief is granted to the economically disadvantaged party, usually the de facto wife, should be the remedy as opposed to the remedy of the severance of the cut-off date in s 7(3)(a)’. This also appears to be a clear misunderstanding of my approach and reasoning. In my article, I argued generally, and not in line with what the CC is required to determine when assessing whether to confirm the High Court order, that there may be a need to assess remedies, such as universal partnership, which can be used to protect financially weaker spouses in marriages without extending the reach of s 7(3) of the Divorce Act 70 of 1979. I stated that ‘[i]n examining whether the Matrimonial Property Act continues to fail women who were married after 1 November 1984, it is also important to assess whether remedies such as universal partnerships have failed to achieve that which s 7(3) of the Divorce Act would have achieved had it continued to apply’.

The author further states that ‘[t]he universal partnership argument is not an issue before the CC, and it is not a reason for the CC not to confirm the court’s order’. Nowhere in my article do I state that the CC must consider the universal partnership argument. This, however, does not mean that this court cannot evaluate whether this remedy can be used to achieve that which is sought to be achieved with the extended reach of s 7(3) of the Divorce Act. I stated that ‘… there is no reason why universal partnerships should not be applicable to marriages out of community of property where the accrual system is not applicable’. I then concluded that ‘[p]erhaps the argument should be the codification of this remedy as opposed to the extension of the application of s 7(3) of the Divorce Act beyond 1 November 1984’. The author correctly pointed out that the universal partnership argument was not an issue before the CC. However, this does not mean that this court should not assess whether this remedy cannot be used to assist vulnerable financially weaker spouses in marriages out of community of property where the accrual system is inapplicable, even in passing. Such an engagement would enrich the debate and spark further commentary and research on the matter.

Most worryingly, the author incorrectly states that I recognise ‘… the need for legislative intervention to grant financial relief on the termination of a marriage excluding accrual, to the economically disadvantaged party, irrespective of the gender of the party and without the need for any further research or “various interest groups should be allowed to participate as amicus”’. This is a mischaracterisation of my argument. It is important to note that nowhere in my article did I make this submission. First, I am of the view that s 7(3) of the Divorce Act in its entirety is constitutional and there is no need for the CC to interfere with it. I am of the view that there are other remedies that can be used to achieve that which the High Court sought to achieve, one of which is the universal partnership remedy.

Secondly, I argued that this is an issue that must be dealt with by the legislature, starting with a thorough investigation of the actual realities of divorced and divorcing persons. Society has advanced and we now have economically advanced women who are insisting on marriages in community of property without the accrual system. The current challenge is to protect a financially weaker spouse, irrespective of that spouse’s gender. This approach will automatically benefit vulnerable women. Thirdly, I explicitly stated that there is a need for further research. Reports that are provided to courts must be scrutinised. Researchers reports based on the review of the available literature, some of which is not from SA, may not adequately assist courts to understand the true realities of women both in urban and rural areas in SA. Empirical reports where the views of these women have been sought and analysed would be more helpful as I argued in my earlier article in relation to child relocation cases in the State of California in the United States of America.

The author appears to be convinced that women cannot be allowed to contract themselves and their children into poverty. That women who conclude antenuptial contracts that exclude the accrual system are seldom making an informed choice given the demonstrable power imbalance between the parties. Further that because our law recognises imbalances between contracting parties in the case of employers and employees where there is legislation in place to protect the weaker party, the ‘same’ protection should be afforded to women in marriages. While this argument is generally understandable, it is often made in a very condescending manner towards women where their autonomy at the time of entering into these marriages is totally disregarded. Most importantly, they are often treated as people who had no idea what they were entering into at the time of their marriage. The impression created through this argument is that women generally would do anything to get married, including not protecting their financial interests when doing so. The true general position can be established through adequate empirical research.

In conclusion, the power imbalance is a reality, which makes universal partnership, particularly against men who tried to be clever by forcing women into financially prejudicial marriages, attractive. In my practice, I have successfully used this remedy to ensure that financially weaker spouses benefit from their marriages where the accrual system is not applicable. I maintain that there is no reason for the CC to confirm the order of the High Court. I vehemently disagree with the author that the judgment of the High Court is ‘… enlightened, sound, and well-reasoned’ for the reasons advanced in my earlier article on this debate. Given the complexity of the matter, the CC will certainly benefit from the participation of various interest groups as amicus on this matter.

Clement Marumoagae LLB LLM Dip in Corporate Law (Wits) LLM (NWU) AIPSA Dip in Insolvency Law and Practice (UP) PhD (UCT) is an Associate Professor at the University of Witwatersrand and a legal practitioner at Marumoagae Attorneys in Johannesburg.

This article was first published in De Rebus in 2023 (Aug) DR 12.