Divorce Act excludes married women from claiming after divorce, ConCourt hears

The Divorce Act is unconstitutional, the Constitutional Court heard, and it is time to remedy the historical unequal bargaining power women have had in certain marriages. 

The apex court on Wednesday heard applications by two women who were married out of community of property, but whose marriages had ended.

Problems arose for both when they were denied their claims from their husbands’ estates.

Booysen matter 

Estelle Booysen married her late husband in 1983 out of community of property.

This is different to the usual “in community of property” where spouses by law share everything equally. “Out of community of property” marriages are regulated by an antenuptial contract, which allows the spouses themselves to regulate their property.

Booysen instituted divorce proceedings in about 2016, but her husband passed away before the matter was finalised. As a result of his death, the marriage automatically ended. In the proceedings, Booysen claimed from her husband’s estate in terms of section 7(3) of the Divorce Act, which deals with asset division in marriages out of community of property. 

Because her husband had died, the executor of her husband’s estate said she could not claim under section 7(3), since it only made provision for asset distribution on divorce, not death.  

Booysen took issue with this, since other women in her position, but who were married later, could claim upon the death of a spouse. This is because other legislation, which affected the Divorce Act, took effect in November 1984. It was through this other legislation Booysen could notionally claim based upon death since section 7(3) prevented death claims. However, such legislation did not apply to marriages before 1984, like Booysen’s.

If Booysen had been married after November 1984 and her husband died, she would be able to claim under different legislation. Booysen argued that other than the date, there was no difference between herself and those married later. 

The Pretoria high court agreed and made an order declaring 7(3) unconstitutional to the extent the Divorce Act did not cater for marriages ended by death for people like Booysen.

Per law, any such declaration must go to the Constitutional Court. That was one of the matters heard today. 

Greyling matter

Similar to Booysen, Karen Greyling married out of community of property, but in 1988 — the time frame within which other legislation became applicable. She also had access to the accrual system, but this was excluded from her marriage because, as her lawyers argued, “she had little choice in the matter”. Constitutional Court justice Owen Rogers noted this had become “the default” system in 1984 for such marriages.

With accrual, spouses can take out what they put into the marital estate and properly distribute what was built up together.  

Greyling’s husband instituted divorce proceedings in about 2018. She also sought to claim in terms of section 7(3), but, since she was married after November 1984, she was denied.  

Her lawyers noted that section 7(3) counteracts “the inequity and injustice” of those “who contributed to the maintenance or increase of their partner’s estate during marriage, but have no recourse against them on divorce”. This was the position she found herself in.

Like Booysen, the Pretoria high court agreed. It held that women in Greyling’s position had no recourse merely because they were married after 1984, whereas those married later did. There was no reason to protect one group but not the other by virtue only of the marital date. 

The order therefore also came before the apex court. 

The Constitutional Court

The minister of justice did not oppose the findings, but made submissions on Wednesday. Advocate Roelof Du Plessis for Booysen took issue with the point raised by others that a “better” case should come along before seeking an amendment. The case was before this court now, he argued, citing practicality. 

Advocate Wim Trengove for Greyling mainly focused on responding to the amicus (friends of the court), the Gauteng Attorneys Association (GAA), who were concerned about opening the floodgates and legal uncertainty. Trengrove noted that section 7(3) is there for a court to implement, thus there is judicial oversight.

However, the GAA argued there was “no concrete evidence or statistics ... presented to show that women are generally in a weaker bargaining position than men”, to warrant intervention of the kind Greyling sought. 

Judgment is reserved.

moosat@businesslive.co.za