On the 11th May 2022, the Pretoria High Court ruled that section 7(3) of the Divorce Act (“the Act”) was inconsistent with the Constitution and therefore invalid, resulting in major changes for future divorce proceedings for couples married out of community of property without the accrual system. 
 
The application brought before the High Court concerns the constitutional validity of s 7(3)(a) and the restriction of the remedy provided for in s 7(3) to marriages out of community of property that were entered into before 1 November 1984 in terms of an antenuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded. 

The status of the law was that a court had no power to exercise their discretion provided in s 7(3), where marriages were concluded out of community of property with the exclusion of the accrual system after 1 November 1984. 
Section 7(3) of the Act deals with the redistribution of assets for couples married out of community of property. The section reads as follows: 

7(3) A court granting a decree of divorce in respect of a marriage out of community of property—

(a) entered into before the commencement of the Matrimonial Property Act, 1984, in terms of an antenuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded;

(b) entered into before the commencement of the Marriage and Matrimonial Property Law Amendment Act, 1988, in terms of section 22 (6) of the Black Administration Act, 1927 (Act No. 38 of 1927), as it existed immediately prior to its repeal by the said Marriage and Matrimonial Property Law Amendment Act, 1988; or

(c) entered into in terms of any law applicable in a former homeland, without entering into an antenuptial contract or agreement in terms of such law. 

The application deals exclusively with marriages out of community of property with the exclusion of the accrual system, The court highlighted the main disadvantage a marriage out of community of property with the exclusion of the accrual system, is that no matter how long the marriage has endured and how much the economically disadvantaged party has contributed to the other party's economic and financial success, the economically disadvantaged party does not have a right share in the latter's gains.  Women are, however, still predominantly found in the position of the economically disadvantaged party. Women are, however, still predominantly found in the position of the economically disadvantaged party. This is an international phenomenon and not unique to the South African context. 

The practical effect of a s 7(3) order is that the party who contributed to the other's gain is compensated for its contribution to the extent that a court finds just and equitable.  The court is granted a wide discretion with a variety of factors that must be considered before an order can be granted in terms of s 7(3)(a). The factors which the Court would have to consider, other than any direct or indirect contribution made by the party concerned to the maintenance or increase of the estate of the other party, would include the existing means and obligations of the parties, any donation made by one party to the other during the subsistence of the marriage, and any other factor which should in the opinion of the Court be taken into account. 

The Court had to consider whether, by the standards of the Constitution, Section 7(3) of the Divorce Act amounted to discrimination against a person. In the judgment, the Court said that, "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. Unlike their counterparts whose marriages were concluded before 1 November 1984, economically disadvantaged parties who contributed to their spouses' maintenance or the growth of their estates, are vulnerable parties whose only recourse is to approach the court for maintenance. The unequal power relationship implicit to any maintenance claim, and the extent to which it renders an economically disadvantaged party vulnerable, in these circumstances speaks for itself." 

The relief granted in the application will have far reaching consequences on the patrimonial consequences of many marriages. The outcome of the application is as such of significant importance to the South African society at large.