Constitutional Court Reshapes Divorce Law with Landmark Ruling

On 10 October 2023, the Constitutional Court rendered a historic judgment when it upheld the decision handed down by the Pretoria High Court declaring section 7(3)(a) of the Divorce Act as being invalid and unconstitutional.

The effect of this judgment means that individuals married out of community of property without the application of the accrual system, may now be able to claim for a redistribution of assets during divorce proceedings, irrespective of the terms of their ante-nuptial contract.

Notwithstanding the above, it is essential to emphasize that this newfound right will not be automatically granted, but rather subject to judicial discretion. The burden rests upon the individual seeking a redistribution of assets to substantiate their claim. The individual would need to prove, with compelling evidence, that they contributed directly or indirectly towards the estate of their former spouse in order for a redistribution of assets to be granted.

This ruling whilst very much prioritizing womens rights, will unfortunately lead to much judicial confusion as litigators are left to wonder if their ANC’s are worth the paper they are written on.

Written by HJW Attorneys

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This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at info@hjwattorneys.co.za directly for advice applicable to your specific matter.