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I found it disheartening and unjust that my female clients married by antenuptial contract out of community of property involved in a divorce action had no proprietary claim against the husband and only the cold comfort of a possible claim for maintenance. At the South African National Council for Child Welfare Conference held on 23 October 1974, I delivered a paper titled ‘Aspects of the South African Marriage and Divorce Laws’. Briefly, I expressed the view that ‘our marriage laws are anachronistic, highly inequitable and in need of radical amendments’. I proposed, inter alia, in respect of marriages out of community of property a form of financial relief on termination of the marriage by death or divorce.

Then came the renaissance on 1 November 1984 with the introduction of s 7(3) of the Divorce Act 70 of 1979. It gave financial relief to the financially disadvantaged spouse (read wife) on termination of the marriage by divorce. Section 7(3) enables ‘the court granting a decree of divorce in respect of a marriage out of community of property [entered into] before 1 November 1984’ (GKR v Minister of Home Affairs and Others 2022 (5) SA 478 (GP) at para 1) with a discretion to order the transfer of assets from one party to the other party as the court may deem just having regard to the factors enunciated in the subsections.

Chapter 1 of the Matrimonial Property Act 88 of 1984 (MPA) provides that every marriage out of community of property entered into from 1 November 1984, in terms of an antenuptial contract, is subject to the accrual system except insofar as that system is expressly excluded in terms of the antenuptial contract. I was appalled at the choice excluding the accrual system. It was a retrogressive enactment and flew in the face of the enlightened rationale for the introduction of s 7(3). I found as a notary that discussions became unpleasant when the one party (usually the husband) insisted on excluding the accrual system. Invariably she (usually the wife) agreed because she loved him, she found commercial bargaining unpalatable, and she was disadvantaged because of the unbalanced economic power dynamics. Unsurprisingly, I found that it was unfortunately an invitation for marital discord and a sure road to the divorce court.

Accordingly, I authored an article titled ‘A plea for enlightened reform’ in which I reviewed laws relating to marriage published in 2003 (May) DR 28. Briefly, I dealt, inter alia, with the ‘need to introduce legislation to –

• amend s 7(3) of the Divorce Act 70 of 1979 to make it applicable to all marriages out of community of property … regardless of the date of marriage and regardless of whether the antenuptial contract is subject to or excludes accrual sharing, and to make it applicable also on the termination of the marriage by the death of a spouse’.

I argued, inter alia, that: ‘It is immoral, against the boni mores of the community and possibly unconstitutional that a party be allowed to enter into a marriage which will not give rise to a patrimonial claim on its termination’.

After all, ‘marriage is a partnership between two people (who find each other physically attractive initially), in which they –

…

• contribute their respective skills and seek to fulfil each other’s needs; and
• are entitled to expect emotional and financial security’.

Then came the enlightened judgment by Van der Schyff J delivered on 11 May 2022 in the case of GKR.

Mr and Mrs G were married out of community of property, excluding the accrual system, in March 1988. The applicant Mrs G sought an order declaring s 7(3)(a) of the Divorce Act unconstitutional and invalid to the extent that it limits the operation of s 7(3)(a) to marriages excluding community of property and excluding accrual sharing that were entered into before the commencement of the MPA namely, before 1 November 1984 – ‘the cut off date’.

The court was called on ‘to decide whether it is constitutional for spouses married out of community of property with the exclusion of the accrual system after 1 November 1984 to be deprived of the relief provided for in s 7(3) of the Divorce Act’ (GKR at para 3). The respondents did not oppose the application and they abided by the court’s decision. Shortly before the hearing the Pretoria Attorneys Association applied and was admitted as amicus curiae.

Infringement of s 9(1) of the Constitution

Mrs G submitted that: ‘Section 7(3)(a) arbitrarily and irrationally differentiates between people married before and after 1 November 1984, being the date on which the Matrimonial Property Act … commenced’ (GKR at para 6). Consequently, the differentiation infringes the equality right in terms of s 9(1) of the Constitution. Mrs G submitted a report by clinical psychologist Judith Ancer dealing with patriarchy and its adverse effects on women.

Mrs G contended that ‘no legitimate government purpose justifies the differentiation that denies persons married out of community of property with the exclusion of the accrual system after 1 November 1984, of the potential protection of a just and equitable remedial judicial order’ (GKR at para 9). Mrs G’s counsel submitted that the choice argument is illusory and advanced sound reasons for his submission.

Violation of s 9(3) of the Constitution

Mrs G further contended that ‘the cut-off date in s 7(3)(a) disproportionally impacts women. The blanket deprivation of excluding spouses from the potential benefits of a just and equitable redistribution order constitutes unfair discrimination based on sex, gender, marital status, culture and religion’ (GKR at para 11). The joint report by Professor Elsje Bonthuys and Dr Anzille Coetzee sketching the context of gender inequality in South Africa was submitted by Mrs G.

Further extracts from the judgment are instructive. ‘The inequality at hand is caused when, after the conclusion of the marriage, a distortion is caused by the fact that one spouse contributes directly or indirectly to the other’s maintenance or the increase of the other’s estate without any quid pro quo. … The [s 7(3)(a)] remedy is currently available only to spouses married before 1 November 1984. … The differentiation amounts to discrimination based on the date on which a marriage was concluded because economically disadvantaged parties’ human dignity is impaired if they cannot approach the court to exercise the discretion provided for in s 7(3) of the Divorce Act’ (GKR at para 57  58).

The amicus raised several objections to declaring the cut-off date in s 7(3) unconstitutional. The court briefly dealt and rightly disagreed with each of the objections.

The court comprehensively dealt with and advanced sound reasons for the summarised orders:

• Section 7(3)(a) of the Divorce Act 70 of 1979 is unconstitutional in that it limits its operation to marriages entered into before 1 November 1984.
• Section 7(3)(a) is to be ‘read as though the words “entered into before the commencement of the Matrimonial Property Act, 1984” do not appear in the section’ (GKR at para 71).
• In terms of s 172(1)(b) of the Constitution, the above orders ‘shall not affect the legal consequences of any act done or omission or fact existing in relation to a marriage out of community of property with the exclusion of the accrual system concluded after 1 November 1984, before this order was made’ (GKR at para 71).
• The orders are referred to the Constitutional Court (CC) for confirmation.
• Each party is to pay its own costs.

Section 7(3) is not sexist legislation, and it is also available to the ‘house husband’. However, the judgment is an enlightened renaissance reform in the amelioration of the plight of married women.

I interpret summarised order three not to have any retrospective effect regarding marriages excluding accrual sharing, which were terminated either by a decree of divorce or death before the date of the order.

The CC has yet to confirm the orders.

It was not relevant for Mrs G to deal with the need for s 7(3)(a) to be applicable also on the termination of the marriage by death of a spouse (as argued by me in my 2003 article). However, the defect is likely to be remedied as appears from the case argued before the CC in the matter of Estelle Booysen v Jacobus Cornelius van Eden NO and Another (CC) (case number CCT 364/2021).

Mrs Booysen and the deceased were married on 23 April 1983 out of community of property in terms of an antenuptial contract. Mrs Booysen instituted divorce proceedings against her husband, which included a claim for redistribution of assets in terms of s 7(3)(a) of the Divorce Act. After litis contestatio but before the divorce action could be determined and finalised, her husband died on 20 April 2016 resulting in dissolution of the marriage.

It was then argued by the then executor that the claim could not be pursued anymore because the marriage had been dissolved and she would only be entitled to enforce such a claim as part of a decree of divorce. The Gauteng Division of the High Court, Pretoria then dealt with the legal question by way of a stated case, as to whether the applicant’s claim for redistribution of assets in terms of s 7(3) of the Divorce Act, had been extinguished by virtue of the death of the deceased and the marriage having been dissolved automatically.

Prinsloo J granted an order on 21 June 2019 as follows: ‘It is consequently declared that henceforth the first portion of section 7(3) … should be read as follows:

“A court granting a decree of divorce or a court considering an asset redistribution claim based on the provisions of this subsection following the dissolution of the marriage by the death of one or both of the spouses in respect of a marriage out of community of property”’ (my italics) – another enlightened renaissance reform.

Mrs Booysen and her daughter reached a settlement agreement as to the division of the estate of the deceased, but van Eden refused to apply the settlement agreement and refused to finalise the estate in the absence of confirmation of the court order of Prinsloo J by the CC.

Mrs Booysen applied to the CC in terms of s 172(2)(d) of the Constitution (in which she and her daughter Estemari Richardson were additional respondents as the substituted joint – executrixes) for confirmation of the court order that was granted by Prinsloo J.

Mrs Booysen argued that spouses married after 1 November 1984 including the accrual system have a claim against each other’s estate after the death of one of the spouses. Spouses married before 1 November 1984 out of community of property only have a right to a distribution order in terms of s 7(3) on the termination of the marriage by a decree of divorce and not on the termination of the marriage as a result of the death of a spouse. Thus, discrimination has arisen between these two categories of spouses, which I submit is unfair discrimination in terms of s 9 of the Constitution as there is no conceivable rational basis or government interest in making such a differentiation between the two categories of spouses.

The hearing took place during the week ended 26 August 2022. Mrs Booysen sought confirmation of the order of Prinsloo J. The judgment has not yet been delivered.

Parties negotiating the terms of an antenuptial contract including the accrual system must guard against provisions in the contract, which largely negate an accrual claim, such as –

• the overstating of asset valuations in the commencement value of a party – each party should prepare a detailed statement of their assets and liabilities duly supported by underlying documents and proper valuations where necessary and to be furnished to each other well before concluding the contract; and
• excluding assets of a party having regard to the nature and type of the asset excluded, such as the interest in their business.

Alick Costa BCom LLB (Wits) is a retired legal practitioner in Johannesburg.

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