Published Date: May 12, 2022

On 11 May 2022 the Pretoria High Court ordered that Section 7(3)(a) of the Divorce Act, 70 of 1979, is declared inconsistent with the Constitution and invalid to the extent that the provision limits the operation of Section 7(3) of the Divorce Act to marriages out of community of property entered into before the commencement of the Matrimonial Property Act. Simply put, individuals married out of community of property without the accrual will now be entitled to claim a redistribution of assets despite the content of their signed antenuptial contract. It should, however, be kept in mind that such a redistribution claim is not an automatic entitlement. A spouse instituting a Section 7(3) claim will still need to prove their direct or indirect contributions made towards the estate of the other spouse to be successful. The court hearing such an application will then have to decide upon not only whether such a spouse is entitled to a claim, but also the extent thereof which may differ greatly from matter to matter. 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 .

Adams & Adams acted on behalf of the amicus curiae who was represented by a team of Advocates consisting of Advocate Sybrandt Stadler, Advocate Sonika Mentz, Advocate Besty Nchabaleng and lead by Advocate Liezl Haupt SC.

Shani van Niekerk
Senior Associate | Attorney