Written by Naseeba Sadak 

Divorce Act declared inconsistent with the Constitution


On the 10th of October 2023, the Constitutional Court of South Africa made a significant decision regarding divorce and property rights. The Court ruled that Section 7(3)(a) of the Divorce Act, was against the Constitution and therefore invalid. This section limited the rights of people who were married out of community of property.

As a result of this ruling, individuals who got married out of community of property can now request for a redistribution of assets in the case of a divorce. However, it is important to note that this does not mean everyone can automatically claim a portion of their spouse’s assets. To do so, there is a need to prove some kind of financial or non-financial contribution to their spouse’s wealth.

The Court also emphasized that this redistribution is not a guaranteed right; it depends on the specific circumstances of each case and whether it is considered fair and just by the court. The Court also mentioned that the existence of an antenuptial contract should be taken into account, but the importance of this contract varies with each case.

This ruling is seen as a victory for women and gender equality as it helps address some of the inequalities that could arise from these rules. The Court recognized that women often end up in financially vulnerable situations after divorce and that this was unfair, hence the court took steps to address this issue.

Get In Touch

332 Jabu Ndlovu (Loop) Street
+27 (0)33 845 9700