Is the divorce court’s discretion to transfer assets as per the Divorce Act unconstitutional?

November 1st, 2022

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In G v Minister of Home Affairs and Others (Pretoria Attorneys Association as Amicus Curiae) [2022] 3 All SA 58 (GP), s 7(3) of the Divorce Act 70 of 1979 was declared unconstitutional. This order is yet to be considered by the Constitutional Court (CC) in terms of s 167(5) of the Constitution. This article discusses whether the CC should confirm the High Court’s order of unconstitutionality.

The nature and character of s 7(3) of the Divorce Act

Section 7(3) of the Divorce Act generally provides the divorce court discretion when dissolving a marriage out of community of property concluded on or before 1 November 1984 to transfer assets or part thereof from the financially stronger spouse (hereafter FSS) to the financially weaker spouse (hereafter FWS). This section was inserted into the Divorce Act to protect vulnerable women who were married out of community of property and contributed towards the growth of their husbands’ estates while their own was not growing due to the gender roles that they assumed during their marriages. It allows vulnerable women to be allocated a portion of their husbands’ assets that were accumulated during the marriage, because they are ordinarily prevented from sharing on divorce due to being married out of community of property (Holomisa v Holomisa and Another 2019 (2) BCLR 247 (CC) at para 2). For this provision to be applicable, ‘[t]he marriage must have been entered into in terms of an antenuptial contract excluding community of property and of profit and loss and any form of accrual sharing’ (Beaumont v Beaumont [1987] 2 All SA 1 (A) at 7).

The court’s discretion to transfer assets from the FSS to the FWS, is a remedial exercise that recognises the contribution of the FWS on the accumulated assets that increased the FSS’ estate. This is a redistribution remedy that seeks to protect the FWS. The exclusion of other vulnerable FWSs from the protection offered by the redistribution remedy had being held to be unconstitutional (see Holomisa and President, RSA and Another v Women’s Legal Centre Trust and Others 2021 (2) SA 381 (SCA)). For redistribution to be ordered, s 7(4) of the Divorce Act requires the court to be satisfied that it is just and equitable to do so by assessing whether the FWS contributed directly or indirectly to the maintenance or increase of the estate of the FSS. The FWS must have maintained or increased the FSS’ estate during the subsistence of the marriage by rendering services or saving expenses, which would otherwise have been incurred by the FSS (Buttner v Buttner [2006] 1 All SA 429 (SCA) at para 22).

The redistribution remedy can only be used by a FWS who was married before the legislation believed to empower spouses to choose their matrimonial property regimes and decide the applicable patrimonial consequences, such as the Matrimonial Property Act 88 of 1984, came into effect (V v V (GP) (unreported case no 19579/2013, 8-12-2017) (Petersen AJ) at para 14). However, in Bezuidenhout v Bezuidenhout [2004] 4 All SA 487 (SCA) at para 21, the court recognised that ‘[w]omen whose marriages were entered into later and with the exclusion of the accrual system may therefore be in the same disadvantaged position as before’. This is what the FWS attempted to demonstrate in G v Minister of Home Affairs and Others, where among others, the court correctly observed that ‘[a]s the law currently stands, the court has no power to exercise the discretion provided in section 7(3), where marriages were concluded out of community of property with the exclusion of the accrual system after 1 November 1984’ (para 1).

Restriction on the redistribution remedy

In G v Minister of Home Affairs and Others the parties were married out of community of property in 1988. The wife sought an order declaring the redistribution remedy unconstitutional to the extent that it does not apply to FWSs, mostly women, whose marriages are out of community of property with the exclusion of the accrual system, which were concluded after 1 November 1984 (para 2). Neither the husband nor the Minister of Justice and Constitutional Development who was joined to the proceedings opposed the application. The Pretoria Attorney’s Association was admitted amicus. The wife argued that the restriction on the application of the redistributive remedy disproportionately impacts women. Further that the restriction amounts to unfair discrimination and operates to ‘trap predominantly women in harmful, and toxic relationships when they lack the financial means to survive outside of the marriage’ (para 11).

The court accepted an expert report that was prepared in support of the wife’s application. This expert report referred to a 2016 study, which was not cited in the judgment, which allegedly found that South African women and women-headed households are significantly more likely to be multidimensionally poorer than males or male-headed households. It is also not clear whether the court assessed the study itself to evaluate the methodology and the adequacy of its sample to determine whether the conclusion reached by the expert who produced the report was factually justified. The court did not indicate whether this study dealt with married women and made findings about their socio-economic conditions during the marriage, reasons for getting married and economic position on divorce.

The expert report contended that ‘[b]lack women remain the poorest group in South Africa. As a result of their disproportionate poverty, women depend economically on male family members, husbands, and intimate partners for their survival and that of their children’ (para 13). While this may be found to be true, it is not clear on what basis the statement was made. From the judgment, there appears to be no empirical research in South Africa, with an acceptable sample that includes urban and rural women who were divorced that was used to substantiate the expert’s claims. The experts opined that ‘… given that women’s ability to generate an income is reduced by marriage, as statistically proven, and that women bear more responsibility for housework and caring labour, a marriage out of community of property with the exclusion of the accrual system would generally favour men’ (para 13). This may well be true but cannot be accepted without serious consideration of the continued emancipation of women in the economy, despite being slow.

It is important for courts to carefully assess and analyse reports prepared by academics as was demonstrated by the Supreme Court of California in two well-known child relocation cases, In re Marriage of Burgess 913 P.2d 473 (Cal. 1996) and In re Marriage of LaMusga 32 Cal. 4th 1072 (2004). These cases demonstrate how academics’ research influenced the outcome of child relocation disputes. In the former case, Dr Judith Wallerstein provided a brief that led the court to adopt a presumption in favour of mothers in relocation disputes. In the latter case, Dr Richard Warshak demonstrated that Dr Wallerstein’s brief discounted the value of children’s frequent contact with non-custodian parents and ignored the important role fathers play in their children’s lives. This led the court to assess academic research carefully and critically before pronouncing itself on relocation disputes. The court rejected presumptions and evaluated the role and importance of both parents in their children’s lives in child relocation disputes (Clement Marumoagae Adjudication of child relocation disputes in South Africa (PhD Thesis, University of Cape Town, 2021) at 122-128).

Whether 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. It is not enough to merely rely on historical grounds on which everyone may well agree relating to the participation (or lack thereof) of married women in the economy without carefully assessing the actual position of women in marriages and their respective attitudes. Perhaps 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. It is important that when the CC considers this matter, it adequately evaluates available research and expert opinion to reach a just decision. The CC was correctly criticised for failing to reference research that it used to ban corporal punishment in South Africa and ignoring contrary research in Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others (Global Initiative to End All Corporal Punishment of Children and Others as Amici Curiae) 2019 (11) BCLR 1321 (CC) (Brigitte Clark ‘Why can’t I discipline my child properly? Banning corporal punishment and its consequences’ (2020) 2 SALJ 335 at 356). This is a mistake that the CC should not make when considering G v Minister of Home Affairs. The amicus argued that ‘… the court is requested 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]’ (para 22). The High Court failed to effectively engage this submission.

There are other equally important factors that must be considered before the High Court’s decision can be confirmed. First, the argument that FSSs dictate the marital regime that will eventually govern a marriage is debatable. The view that there are men who are afraid to suggest marriages out of community of property to their partners is never considered. So is the extent to which men may be forced into these marriages. Second, when promulgating the Matrimonial Property Act, did the legislature consider the plight of women who were subjected to marital power? Third, an assessment of whether women have the same bargaining power to decide their preferred marital is important. This raises the choice argument which was rejected by the majority of the CC in Bwanya v the Master of the High Court and Others 2022 (3) SA 250 (CC) at para 62, based on the ‘alleged’ women’s lack of bargaining power. It is important to note that in reaching this conclusion, Madlanga J did not cite any authority or research that justifies his conclusion. The opinion was not unanimous and choice argument can still be considered by the CC. The CC must determine whether marital regimes are a matter of choice and the extent to which both parties can decide their preferred system. A determination of whether a party who voluntarily entered a marriage can be held to the natural consequences of the marriage is important. These are issues that need adequate research.

In 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. Just like this provision, which becomes important when the marriage ends, universal partnership can be established when the relationship terminates. A partnership will be established when parties brought something into the partnership such as money, labour or skill; when the object of the partnership was carried out for the joint benefit of both parties; the parties object was to make a profit; and the partnership was legitimate (Pezzutto v Dreyer and Others 1992 (3) SA 379 (A) at 390A-C). In Khan v Shaik 2020 (6) SA 375 (SCA) at para 8, it was held that ‘[p]lainly, the essence of the concept of a universal partnership is an agreement about joint effort and the pooling of risk and reward. Upon termination of the universal partnership, what follows is an accounting to one another; the poorer partner becomes the richer partner’s creditor’.

In Butters v Mncora [2012] 2 All SA 485 (SCA) at para 18(b), the SCA held that ‘[a] universal partnership of all property does not require an express agreement. Like any other contract it can also come into existence by tacit agreement, that is by an agreement derived from the conduct of the parties’. The CC will then be in a position to determine whether the concept of universal partnership can be applied to marriages out of community of property, which excludes the accrual system, or this will lead to untenable amendment of the parties antenuptual contract (DM v MM (FB) (unreported case no 1226/2018, 26-10-2018) (Opperman J) at para 7-10). Based on Fink v Fink and Another 1945 WLD 226 at 228 and Mühlmann v Mühlmann 1984 (3) SA 102 (A), 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. The parties will still retain their contractual autonomy and where it is demonstrated that the financially weaker spouse contributed towards the accumulation of the financially stronger spouse, the former spouse’s rights can be protected using the universal partnership remedy. Perhaps 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.


Given the complexity of the issues and the research that is needed, courts are not better placed to deal with the extension of the application of the redistribution remedy. This requires legislative intervention, starting with a thorough balanced investigation of the lived realities of divorced spouses by the South African Law Reform Commission. Should 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.

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

This article was first published in De Rebus in 2022 (Nov) DR 18.

De Rebus