Parties married prior to 1 November 1984, out of community of property, are upon divorce entitled to a redistribution order in terms of section 7(3)(a) of the Divorce Act.

Published on November 3, 2022

When parties married prior to 1 November 1984, out of community of property, they knew and understood that they will each have separate estates. They specifically elected not to have a marital regime of in community of property or a regime of out of community of property, but subject to the accrual system.

Since 1984 marriages concluded out of community of property prior to 1984 were excluded from the operation of Section 7(3)(a) of the Divorce Act. Parties' upon divorce, each kept his / her separate assets.

In the matter of GKR VS MINISTER OF HOME AFFAIRS AND ANOTHER 2022(s) S.A 478 (GD) the legal position changed dramatically. The court declared the words “entered into before the commencement of the matrimonial Property Act in Section 7(3)(a) of the Divorce Act” inconsistent with the constitution and invalid. The court referred the finding to the Constitutional Court for confirmation.

The results of the aforegoing is that spouses, upon divorce, and married to each other prior than 1 November 1984, out of community of property, are now able to claim for a redistribution order of the assets of the marriage concluded out of community of property, in terms of Section 7(3)(a) of the Divorce Act.

Parties married to each other prior to 1 November 1984 would be married to each other for at least 38 years in 2022 and are unlikely to divorce from each other at this stage. Yet, the verdict of the court remains. In practice it means that a party claiming part of the other's estate will probably be entitled to the redistribution thereof of 30% to the claimant.

H.H. Weiss
Candidate Attorney