Divorce Act ruling fair to women

In a landmark ruling last week, the North Gauteng High Court in Pretoria has deemed unconstitutional a section of the Divorce Act that was found to be unfair and discriminatory against women.

The section of the law took away the rights of women married out of community of property and without accrual from benefitting from their contribution to the marriage. The law came into effect before the Matrimonial Property Act (MPA) was enacted in 1984. Prior to this South Africans could only marry either in community of property, which means all assets and debts are shared, or out of community of property, which separated a couple’s assets and debts in marriage.

A section introduced to the Divorce Act that gave judges discretion in the distribution of assets in marriages out of community of property prior to the enactment of MPA when the accrual system didn’t exist was the subject of the court challenge.

The court accepted the challenge brought by an estranged wife of a wealthy farmer referred to as Mrs G, who has been married for 30 years and raised three children to adulthood. She had signed an antenuptial contract that precluded her from making any kind of claim from her husband during divorce.

She asked that the act be declared unconstitutional and invalid and grant courts the right to rule on the split of assets in cases where women have been contributors to the marriage in many ways other than financially.

The court agreed with her and found that those suffering from economic disadvantage who were married out of community of property, without accrual, had no recourse to address this injustice.

“Only those who go blindfolded through life can deny that gender equality has not yet been achieved in South Africa. The equality issue brought to the fore in this application is not solely attributable to race or gender or religion, but also to economic inequity,” read the judgment.

The court in its ruling has therefore rightfully restored the rights of women in marriages who for decades have been humiliated by this discriminatory law.

It is commendable that the high court also found the section of the Divorce Act reeked of unfair discrimination against women.