CONCOURT DECLARES SECTION OF THE DIVORCE ACT UNCONSTITUTIONAL

CONCOURT DECLARES SECTION OF THE DIVORCE ACT UNCONSTITUTIONAL

Ordinarily, an individual married out of community of property without accrual can’t claim from their spouse’s estate if they divorce.

JOHANNESBURG – The Constitutional Court has declared as unconstitutional a section of the Divorce Act.

This has left many stay-at-home wives at risk of financial ruin should they divorce.

Ordinarily, an individual married out of community of property without accrual can’t claim from their spouse’s estate if they divorce.

Section 7(3) of the act allows the courts to divvy up the assets in a more fair and equitable way if that individual can show they made a significant non-financial contribution to the marriage.

But this only applies if they were married pre-1984, when the option of marriage out of community of property with accrual was introduced in South Africa.

The Constitutional Court has upheld a previous ruling from the High Court in Pretoria that found the section in question was unconstitutional.

Finding further that it amounts to unfair and unjustifiable indirect discrimination on the basis of gender, because of the way women are disproportionately affected.

It’s given Parliament 24 months to remedy the defect.

In the meantime, though, it’s removed the cut-off date from the section in question.

It’s important to note, though, that the ruling won’t affect cases that have already been finalised.

On the back of a different case – which was heard at the same time – the apex court also found that the section in question should apply when marriages end as a result of death as opposed to divorce.

Source Credit: https://ewn.co.za/2023/10/10/concourt-declares-section-of-the-divorce-act-unconstitutional/amp

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