Greyling v Minister Of Home Affairs & Other, the case that is challenging the constitutionality of section 7(3) of the Divorce Act (Act 70 of 1979). Let’s take a quick look at the legal standing before the case and what the position would be after.
Who does it apply to, couples who signed an ANC and decided they were to be married out of community of property without accrual. This means that the spouses decided that what’s mine stays mine and what yours stays yours before, during and after the marriage.
Before
In a divorce, if you signed an Ante Nuptial Contract (“ANC”) before 1 November 1984, then you could ask the court to redistribute yours and your spouses’ assets despite the terms contained in your ANC. The court then had the discretion to make a decision on whether the redistribution it is equitable, appropriate and justifiable (the act and case law goes further to state when this may be the case).
The issue
The concern is what about those couples who signed an ANC after 1 November 1984, and who have justifiable reasons for requesting a redistribution of assets at the time of divorce? Is it fair that they are deprived of the relief under s7(3) of the Divorce Act? At present, the court does not have the power to exercise this discretion or make a decision contrary to their ANC no matter how equitable, appropriate and justifiable their reasons are.
After
Greyling v Minister Of Home Affairs & Other, Judgment orders that this differentiation of ANC’s signed before and after 1 November 1984 (which is when the Matrimonial Property Act came into law) is unconstitutional and that it s7(3) relief applies to all couples regardless of when they signed their ANC.
Impact
Before you think your ANC is redundant and of little value please remember that this applies to divorce and spousal maintenance only. The other benefits which out of community of property with or without accrual are still in place.
The effect is that all those who are married out of community of property with the exclusion of the accrual system and are getting divorced after 11 May 2022 may approach the court for the relief that Section 7(3) of the Divorce Act provides.
The final step is for the Constitutional Court to review this Judgment and confirm the ruling. Let’s wait and see. Myers Attorneys will keep you posted.