The Ruling of Section 7(3) of the Divorce Act 70 of 1979 and the practical implications
11 July 2022, Varushka Moodley
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.