Mrs G's court victory a win for women as court declares portions of Divorce Act unconstitutional

13 May 2022 - 18:43
By Gill Gifford
The Pretoria high court has declared part of South Africa's Divorce Act unconstitutional, paving the way for courts to come to the aid of many women who would otherwise walk away with nothing.
Image: 123RF/LUKAS GOJDA The Pretoria high court has declared part of South Africa's Divorce Act unconstitutional, paving the way for courts to come to the aid of many women who would otherwise walk away with nothing.

A landmark Pretoria high court ruling this week has succeeded in having the Divorce Act declared unconstitutional and invalid, clearing the way for women who did not earn financially during their marriage and would therefore not qualify for any kind of settlement.

From this week, women who married after November 1 1984, when the Matrimonial Property Act came into effect, can now challenge their part in the marriage and ask the courts — previously barred from ruling on this — to order a settlement that is fair and takes into account the role women play in the home as having value.

The application — lodged by Mrs G, a woman who has been married for 30 years and raised three children to adulthood — decided to get a court order to have her divorce put on hold so she could challenge the constitutionality of the Divorce Act.

Mrs G was 22 when she married a farmer in March 1988. Shortly before the wedding her father-in-law-to-be announced that no community of property and accrual would apply to the  marriage and Mrs G was presented with a one-page antenuptial contract by the family’s lawyer and instructed to sign it.

She and her husband lived on a large farm in a rural area and had three children — all of whom were high achievers. This meant that Mrs G was extremely involved in their schooling, did a huge amount of transporting them, was an exemplary wife and mother and was heavily involved in community work.

Her husband, meanwhile, was a successful farmer who won awards for farming, did very well financially and was able to buy more farms.

The family lived a luxurious life, driving luxury cars and enjoying overseas holidays. However, the marriage was abusive and the couple separated in 2016. Mrs G then went about finding a way to challenge what she believed to be an unfair situation in which her pending divorce would ordinarily see her walk away with nothing more than a small inheritance she received from her mother.

In terms of the Divorce Act, she would not be entitled to make any kind of claim from her husband — not a portion of what they owned, and nothing of what they accumulated during their 30 years together, simply because she did not bring in an income. And because of her inheritance, she would also not be able to claim maintenance.

“My client went to a number of attorneys who told her she didn’t have a case. Eventually she came to me in 2019, and I was keen to take this on because I have always thought the law was unfair,” said specialist family lawyer Beverley Clark of Clarks Attorneys.

“I have had so many clients where the woman got such an unfair deal. Many women who have been homemakers are trapped in unhappy or abusive marriages because they know they will walk away with nothing. This order will make a difference to them,” she said, adding that many women have been waiting anxiously for the outcome of Mrs G’s application.

“This is not about bread and milk money. It’s about proper compensation and it’s about the courts being allowed to step in and exercise discretion to avoid unfairness. This order is seminal and the message needs to get out.”

Mrs G asked the court to declare the Divorce Act unconstitutional and invalid, and to grant courts the right to rule on the split of assets and possessions in cases where women have been contributors to the marriage in many ways other than financially and are deprived of the right to ask for relief.

Her application made reference to The Ancer Report, drafted by clinical psychologist Judith Ancer, describing how, before the Matrimonial Property Act came into effect, the law entrenched a patriarchal system in which a man was legally entitled to control his wife and where women had a weak bargaining position.

“On the assumption that the husband's headship of the family was only removed in 1993, it means that the patriarchal system persisted for nine years after the Matrimonial Property Act came into force, but a woman lost the ability to make an application under section 7(3) of the Divorce Act when the accrual system was introduced.”

This, Ancer said, meant there was a lag in time “between something becoming law on paper, and the entrenched systems of romantic and marital relationships adjusting to a new legal position”.

On Wednesday the Pretoria high court agreed and ruled that a part of SA’s Divorce Act is unconstitutional.

It sets up major changes for how divorces are handled when couples are married out of community of property, finding it amounts to unfair discrimination.

“When the news came through, my client cried. She was so happy. She has fought hard and it has been worth it. This is going to change things for so many women,” said Clark.

The order will now go to the Constitutional Court to be confirmed. Once it is rubber stamped, it will have a significant impact on many divorces.


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