CHC v CC (GP) (unreported case no 7225/2022, 31-7-2024) (Kok AJ)

On 10 October 2023, the Constitutional Court delivered a landmark judgment declaring s 7(3) of the Divorce Act 70 of 1979 to be unconstitutional, violating the right to equality on the grounds of gender and marital status and the right to dignity. The court noted that in the EB v ER NO and Others and a Similar Matter 2024 (2) SA 1 (CC) judgment, it was held that s 7(3) of the Divorce Act should include spouses who entered into a marriage out of community of property without accrual to request redistribution of assets where a spouse has contributed to the growth of the other spouse’s estate.

This judgment did not mean that all spouses who are less financially secure in divorce proceedings are now automatically entitled to a redistribution of their wealthier spouse’s assets, but rather affords a remedy to those marriages where the accrual system was excluded from applying to the marital regime, and spouse A (usually the woman) has contributed to the growth of spouse B’s estate. The spouse will still have to prove the contribution before the court in the divorce proceedings in order for the court to make a just and equitable order. The Constitutional Court’s suspension of the offending clauses in s 7(3) of the Divorce Act meant that the remedy would be open to divorce proceedings that have not been finalised until Parliament enacts legislation to bring the redistribution of assets proviso in line with the Constitution.

The Gauteng Division of the High Court in Pretoria has had the first bite of the cherry on the issue in the case of CHC v CC. The parties in this case were married out of community of property without accrual in 2007, and the marriage resulted in the birth of one child. Prior to getting married, the wife (the defendant) quit her job, became a housewife and thereafter a stay-at-home mum, a role that persisted until the decree of divorce was granted, with the exception of employment for a brief period in 2012 for eight months. The husband (the plaintiff) was the sole breadwinner and provider, responsible for all financial obligations of the household during the subsistence of the marriage.

Prior to the marriage, the husband owned one immovable property and acquired two further immovable properties during the marriage, while the wife’s estate remained the same. The husband instituted divorce proceedings, citing an irretrievable breakdown of the relationship between the parties, namely: the parties were no longer on speaking terms and each person was responsible for their own domestic chores such as laundry and lunch, as opposed to earlier days of their marriage. The wife made an application for the redistribution of assets belonging to the husband because she had been unemployed since 2012, she was advanced in age, and by being the stay-at-home parent, she contributed to running the marital household, thus allowing the husband’s estate to grow substantially at the expense of her own estate.

The husband opposed the s 7(3) application, advancing that there was no reason for the wife to have been unemployed for so long, she did not contribute to the growth of his estate, and was going to be receiving spousal maintenance anyway. In assessing the application, the court highlighted that these are the type of scenarios that the EB v ER judgment seeks to redress, where the woman is the poorer spouse in the marriage and remains so after the divorce, since labour and efforts that do not have a financial impact are barely recognised. The court held that the wife failed to explain why the parties had entered into a marriage out of community of property without accrual, especially since she quit her job prior to getting married to the plaintiff.

It is unfortunate that the question or requirement was posed to the applicant, as a marriage out of community of property without accrual is one of the marital regimes available to would-be spouses, and there is no requirement to disclose choosing an option that did not benefit her as it gives the impression that it was the wife’s decision or at her request alone that the marriage be out of community without accrual, rather than the agreement that it is to the parties. This question was not posed to the husband in his objection to application. The court found that due to the wife’s age, lack of marketable skills and her contribution to running the marital household, she had contributed to the growth of the husband’s estate, and it would be just and equitable to award a redistribution of assets.

The court awarded the wife one of the properties belonging to the husband as both the redistribution and her form of maintenance. This case is one of the first to successfully demonstrate the importance of the EB v ER judgment. In ordinary divorce proceedings before this landmark ruling, the wife would not have had access to the remedy under
s 7(3). This is because she and her husband had chosen a marital regime excluding the accrual system, meaning each party would leave the marriage with only what they brought into it and acquired during its subsistence. The fact that one spouse contributed to the growth of the other’s estate was of no consequence, and in this case, the wife was given an opportunity to show that she contributed to the growth of her husband’s estate and successfully showed the court that she played a significant role in her husband’s nett worth, thereby allowing for a just distribution of assets between the parties, and that the role of a home executive and its importance was recognised again by the courts.

The judgment of CHC v CC is a welcome contribution to case law, it has developed the law and availed remedies to spouses who would ordinarily end up destitute. It is not an automatic award, but the applicant must comply with the requirements set out in the Divorce Act for the court to find in their favour. The poorer spouse is generally the wife, the remedy and this case have tipped the equality scales slightly in favour of women, thereby honouring and respecting the constitutional rights to equality and dignity.

Vuyo Sobantu LLB (UKZN) is a legal practitioner at Stowell and Co Inc in Pietermaritzburg.

This article was first published in De Rebus in 2025 (March) DR 44.