Redistribution discretion now available to marriages out of community of property with the exclusion of the accrual system entered into after the commencement of the Matrimonial Property Act 1 November 1984
Two main matrimonial property regimes existed in South Africa prior to the commencement of the Matrimonial Property Act 88 of 1984 (“the MPA”) on 1 November 1984, namely:
(i) marriages in community of property with the marital power; and
(ii) marriages out of community of property with the exclusion of both community of profit and loss and the marital power.
The MPA brought about major changes after 1984. The marital power was abolished in respect of marriages in community of property, which resulted in a total abolishment of the notion of marital power, and any party to a marriage could contractually agree to be married out of community of property with or without the accrual system.
A marriage out of community of property with accrual affords parties to retain separate property and act independently of their spouse, while still enjoying a form of “joint estate” whereby anything accrued during the marriage is shared between the spouses. The parties’ split assets acquired during the marriage by, either on death or divorce.
Section 7(3) of the Divorce Act 70 of 1979
Section 7(3) of the Divorce Act provides the court granting a decree of divorce in respect of a marriage out of community of property concluded before 1 November 1984, with a discretion to make a redistribution order to the effect that any asset, or sum of money, may be transferred from one spouse to another, subject to the provisions of s 7(4), (5) and (6).
The section generally provides the divorce court with a 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 to the financially weaker spouse.
In terms of the current law, a court has no power to exercise the discretion provides in section 7(3) where the marriage was concluded out of community of property with the exclusion of the accrual system after 1 November 1984.
Constitutionality of section 7(3) of the Divorce Act
The constitutionality of section 7(3) of the Divorce Act was challenged in the case Greyling v Minister of Home Affairs and others (40023/21)  ZAGPPHC 311.
In this case, the Applicant was married in 1988 after the commencement of the MPA. She challenged the constitutionality of section 7(3) in that it arbitrarily and irrationally differentiated between spouses married before and after 1 November 1984 when the MPA commenced.
The court declared that section 7 (3) (a) was unconstitutional due to its wording, “entered into before 1984”. In deciding the validity of this section, the court analysed firstly whether the section differentiates between people on grounds that amount to discrimination, and secondly whether the discrimination was unfair. The court ruled that there is no legitimate reason justifying the differentiation between spouses married before and after 1 November 1984, further stating that the section operates to trap predominantly women in harmful and toxic relationships when they lack the financial resources to survive outside the marriage.
The court found that the differentiation between those married before and after 1 November 1984, resulting in the deprivation of s 7(3) relief, did amount to unconstitutional discrimination. Refusing an application for s 7(3) discretion impairs the applicant’s dignity and limits their recourse.
Therefore, the redistribution discretion is now available to all marriages out of community of property without accrual regardless of the date on which they were married. Even if the parties signed an antenuptial contract to the contrary, they will still be entitled to request equitable division of assets accrued over the duration of their marriage.