Lawyers representing a woman in a landmark divorce case are gearing up for a Constitutional Court hearing, seeking confirmation of a high court ruling that allows spouses in out-of-community of property marriages to claim each other’s pensions upon divorce.
This move could change the game for South Africans who believed that marrying out of community of property without accrual would shield their pensions from divorce settlements.
The upcoming case stems from a February ruling by the Eastern Cape High Court sitting in Gqeberha, which found that this long-standing protection was unconstitutional.
The applicant, a woman identified as G.D., challenged Section 7(7)(c) of the Divorce Act, 70 of 1979. This act regulates how assets are divided upon divorce in South Africa.
Only applies to those married before 1984
It originally allowed spouses in out-of-community property marriages to claim a share of assets, but only if they married before November 1, 1984.
Those who got married out of community of property after this date, without the accrual system, were barred from claiming pension interests, often leaving them financially vulnerable.
The ministers of home affairs and justice and constitutional development were cited as respondents. But they but did not oppose the case.
The third respondent was the applicant’s ex-husband, whose pension was at the centre of the dispute.
Waiting for Apex court date
Nico Walters, director at the instructing attorneys’ firm Catto, Neethling and Wiid, told Sunday World that the application for the confirmation of the Qeberha High Court ruling has now been filed with the Constitutional Court.
“I confirm that an application for confirmation was lodged at the Constitutional Court,” said Walters.
He said they are now waiting for the apex court to allocate a date for their hearing.
With the ministers having not opposed the high court application, it is likely that the ruling will be confirmed.
Acting Judge Olav Ronaasen delivered judgment back in February. He ruled that the provision unfairly disadvantaged spouses, mostly women, who dedicated their lives to running a household.
“The impugned section is irrational and contrary to section 9(1) of the Constitution. And it is therefore unconstitutional and invalid,” he declared.
2004 marriage produced three minor children
The applicant and her husband were married on April 25 2004, under an antenuptial contract. This contract excluded community of property and the accrual system.
She told the court how, for years, she managed the home, raised three children, and supported her husband’s career.
“Her role, like the role of many women, included caring for the three children born of the marriage. (All of the children are still minors), she prioritised their development and well-being and their best interests. Also running and maintaining the family home and prioritising the third respondent’s career and business aspirations, his activities and his personal endeavours in numerous ways,” the judge noted.
Despite this, when the marriage broke down, she found herself unable to claim a share of his R1.5-million pension.
Contract made pension untouchable
The law, as it stood, deemed pensions untouchable in her type of marriage.
“How can it be a fair form of discrimination to withhold, from one class of spouses and in particular women in that class, a fair judicial remedy of which they may have as much need as other spouses?” Ronaasen asked in his ruling.
The ruling referenced previous Constitutional Court decisions. One in particular was the KG v Minister of Home Affairs, which found that outdated divorce laws left women financially stranded.
Expert evidence presented in court highlighted that women typically earn less than men. They take on more unpaid household labour, and often do not have pensions of their own.
“Women typically enter into marriage poorer and more dependent than men. They also do so having less bargaining power,” the judge observed, citing expert analysis.
He further noted that many make indirect contributions to the growth of their male partners’ estates. These include to their future pension benefits, on the assumption that they will eventually share in these benefits.
Section ruled unconstitutional
The court ruled that Section 7(7)(c) is unconstitutional with immediate effect. This means that spouses in out-of-community marriages can now claim a portion of their partner’s pension during divorce.
However, the ruling will not apply retroactively. The judge made it clear: “The order shall not affect the legal consequences of any act done or omission or fact existing before this order was made in relation to a marriage concluded on or after 1 November 1984.”
Home affairs minister was also ordered to cover the applicant’s legal costs, despite not contesting the case.
This judgment is expected to send shockwaves through divorce courts, particularly among spouses who believed their pensions were legally untouchable.
As Judge Ronaasen put it: “Spouses who have contributed to the financial stability of a marriage, whether through direct income or unpaid labour, should not be left destitute when it ends.”
According to Statistics South Africa, the country recorded 20 196 divorces in 2022. This marked a 10.9% increase from the 18 208 divorces registered in 2021.
Could be game changer in SA divorce laws
The crude divorce rate stood at 33 divorces per 100 000 people. The data showed that the most common age for divorce was 42 years for men. For women, the most common age was 39.
In terms of racial demographics, 54.7% of divorces involved Black African couples. White couples accounted for 19.4% of divorces. Coloured couples made up 15.7%, while Indian or Asian couples represented 4.3%. Mixed-race marriages accounted for 2.7% of all divorces.
The provinces with the highest number of divorces were Gauteng, Western Cape, KwaZulu-Natal, and Eastern Cape.
If upheld by the Constitutional Court, the ruling will remove pensions as a financial refuge for wealthier spouses. It will alter the landscape of divorce law in South Africa.
