The Gauteng High Court (Pretoria) has paved the way for divorcing spouses married out of community of property and without the accrual system to be financially compensated for their contribution to the marriage. In a groundbreaking judgment in the case of GKR v GBP (40023/21) (2021) ZAGPHC (11 May 2022), the court declared section 7(3)(a) of Divorce Act 70 of 1979 unconstitutional in that it did not allow for a court to make a ‘redistribution order’. This is said to be a historic judgment especially for women who previously stood to receive nothing if they were married out of community of property.
The practical effect of the judgment is that anyone divorcing who feels they contributed to a marriage – whether directly or indirectly – can now apply for a fair share of the assets accumulated by the spouses during the marriage. This extends especially to the women who have taken care of the children and household during the marriage, without working and earning an income.
The discretion to award a claim, however, still lies with the court and each case based on its merits. Judge Elmarie van der Schyff declared that this section of the Divorce Act was inconsistent with the Constitution and invalid to the extent that the provision limited some spouses to be compensated from the assets that both parties had worked towards during the marriage. In terms of the court order, such a redistribution of assets is not an automatic entitlement, a spouse instituting a claim under this section will still need to prove their direct or indirect contributions made towards the estate of the other spouse. ‘The court hearing such an application will then have to decide whether the claiming spouse is entitled to anything. The court will also have to decide on the extent of the claim, which may differ from matter to matter.’ The order will have far-reaching consequences and is expected to open the floodgates for spouses to get a fair share of what they put into the marriage. The order, however, does not have any effect on spouses who are already divorced.