Lawyers of woman challenging Divorce Act say move would help 'thousands'
The woman is challenging section 7(3) of the Divorce Act, insofar as it excludes those married out of community of property and without accrual after 1984, from potentially being able to claim from their spouse's estate if they divorce.
JOHANNESBURG - Lawyers acting for a woman behind a bold constitutional challenge to the Divorce Act said that it stood to make a difference in the lives of thousands of people across the country.
The woman is challenging section 7(3) of the Divorce Act, insofar as it excludes those married out of community of property and without accrual, after 1984, from potentially being able to claim from their spouse's estate if they divorce, regardless of the non-financial contributions they made.
In May 2022, the Pretoria High Court ruled in the woman's favour, and now the judgment is headed to the Constitutional Court for confirmation.
Gauteng High Court Judge Elmarie van der Schyff said it was patently unfair that an economically disadvantaged party who can make out a case for relief in terms of section 7(3) is metaphorically left out in the cold.
The woman herself was married out of community of property without accrual in 1988. Decades on, she and her husband, a wealthy farmer, are in the process of a divorce.
She stands to be left with nothing, despite the work she said she put in at home to help him achieve his success.
As her attorney, Beverley Clark of Clarks Attorneys, explains this was a matter of "huge public interest", with thousands of people married in the same way. Clark said many people, and women in particular, were trapped in bad marriages as a result.
“Women still tend to be the financially disadvantaged party in a marriage - that is by far the more common situation. Many women are trapped in bad marriages, and sometimes abusive marriages, because they cannot afford to leave.”
She said if successful, the case could make an enormous difference “to thousands of people who were already in these situations and to people in future, because people will continue to be married with these antenuptial contracts.”
While the high court opted to sever the offending part of the act, Minister of Justice Ronald Lamola wants it sent back to Parliament to make the necessary amendments instead. But the application for confirmation is not opposed.
The case is set down for hearing in the Constitutional Court on 9 February.
