Concourt divorce ruling shifts asset share

The Constitutional Court has delivered a groundbreaking judgment that will give women married out of community of property under the Transkei Marriage Act (TMA) a better financial deal in a divorce.

The court has declared Section 7(3) of the Divorce Act 70 of 1979 constitutionally invalid.

The judgment stemmed from an application by Bukelwa Nolizwe Holomisa against the “discriminatory oddity” that women married out of community of property under the TMA do not enjoy financial protection in divorce.

The appeal concerned whether the marriage between her and ANC MP Patakile Holomisa was in or out of community of property for determining how the estate should be divided in divorce.

Bukelwa was challenging Patakile after he instituted an action for divorce. She counter claimed for care of their children, maintenance for herself and division of the joint estate.

After going through the Eastern Cape high court and the Supreme Court of Appeal, the Constitutional Court has now granted her direct access to the Constitutional Court.

The Constitutional Court has also ordered parliament to remedy the invalid section 7 (3) of the Divorce Act 70 of 1979.

Delivering a unanimous judgment, Justice Johan Froneman said the Legal Aid lawyers who represented Bukelwa Holomisa had done her, all women in her position and the justice system a great service.

According to the marriage certificate the parties were married “without an antenuptial contract”.

Therefore in terms of the TMA this marriage was out of community of property.

In her application Bukelwa Holomisa was also asking the Constitutional Court to refer her propriety claim (to own a specific asset or portion of the estate) back to the regional court, which was to apply the new Constitutional Court ruling she had argued in favour of.

“Section 7(3) of the Divorce Act 70 of 1979 is declared constitutionally invalid to the extent that it excludes a spouse married out of community of property who has not entered into an antenuptial contract,” the judgment reads.

Women married out of community of property under the TMA now have a better deal