In a recent case in the High Court of Gauteng, the court found that the limitations of section 7 (3) of the Divorce Act, which only allows spouses married before the introduction of the Matrimonial Property Act to claim a redistribution of the spouse’s assets, is unconstitutional and invalid to the extent that it limits claims to marriages before the Matrimonial Property Act was introduced. Accordingly, the court found that the redistribution of assets in terms of Section 7(3) can be claimed by a spouse married out of community of property, which excludes the accrual system, irrespective of whether such marriage took place before or after the introduction of the Matrimonial Property Act.
This decision is yet to be confirmed by the constitutional court, however, all indicators are that the constitutional court will endorse this decision.
This decision may relieve the pressure in the maintenance courts, as a spouse who found herself subjected to a marriage out of community of property, excluding the accrual system, could only claim spousal maintenance in the divorce as a means to sustain herself. Now that a spouse can claim a redistribution of the assets and use those assets to maintain herself, it is likely that there will be fewer spousal maintenance claims to be dealt with in the Maintenance Court.
A small but welcome relief for the Maintenance Court in the future.
Short read article written by Catherine Coetzee
For a full reading of the case, which is extremely interesting, please click the below link.
KRG v Minister of Home Affairs [2022] 40023-21 (GP)
https://drive.google.com/file/d/12QIPowSJPe3uqwZk5RHbdviBnG6B0GLF/view
