Redefining divorce rights: Section 7(3) of the Divorce Act struck down by the Constitutional Court
In a significant legal development, the Constitutional Court of South Africa, on 10 October 2023, upheld a judgment from the High Court of Pretoria, declaring Section 7(3) of the Divorce Act as unconstitutional. This ruling has far-reaching implications for marriages entered before the commencement of the Matrimonial Property Act and has the potential to reshape the legal landscape concerning property rights in divorce cases. This article explores the Constitutional Court’s decision, the factors it considered, and the practical effects of this groundbreaking ruling on the division of assets in divorce proceedings. A ruling, delivered in the High Court of Pretoria, declared that Section 7(3) of the Divorce Act was inconsistent with the Constitution, especially regarding marriages established on or after the enforcement of the Matrimonial Property Act. Following this, on 10 October 2023, the Constitutional Court affirmed the High Court’s judgment, declaring Section 7(3) of the Divorce Act unconstitutional. Section 7(3)(a) of the Divorce Act reads as follows: “(3) a court granting a divorce order in respect of a marriage out of community of property- entered into before the commencement of the Matrimonial Property Act, 1984, in terms of an antenuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded; Some of the factors the Constitutional Court considered are as follows: Differentiation between marriages entered before and after the Matrimonial Property Act. The court ruled as follows: “In my view, the relevant differentiation is confined to spouses in old ANC (antenuptial contract) marriages. Within that group, spouses whose marriages terminate by divorce are treated differently from those whose marriages terminate by death, because the former class has the benefit of the redistribution remedy whereas the latter class does not.” The discriminatory factor of the differentiation, in terms of section 9 of the Constitution: “Even on the broadest view of ‘attributes and characteristics’, however, differentiation based on whether the marriage ends by divorce or death has nothing to do with the attributes and characteristics of the spouses.” The justification of section 36 of the Constitution: “Is the limitation on the equality right in section 9(1) of the Constitution justifiable in terms of section 36 of the Constitution? …” The Constitutional Court then followed with “…it is the existence of section 7(3), coupled with the absence in any other legislation of a similar remedy for marital dissolution by death, that gives rise to the differentiation. It is understandable, therefore, that section 7(3) was the target of the attack. That the remedy might more appropriately be a reading-in of an analogous provision into the MPA is not fatal to the confirmation proceedings.” The court afforded the Parliament 24 months to remedy the defect and stated that there is no reason that there should not be an immediate effective relief in the form of an interim reading-in. It was suggested by the High Court that the reading-in be as follows: “A court granting a decree of divorce in respect of a marriage out of community of property— (a) entered into before the commencement of the Matrimonial Property Act in terms of an antenuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded; (b) entered into before the commencement of the [Amendment Act] in terms of section 22(6) of the [BAA] as it existed immediately prior to its repeal by the [Amendment Act]; or (c) entered into in terms of any law applicable in a former homeland, without entering into an antenuptial contract or agreement in terms of such law, may, subject to the provisions of subsections (4), (5) and (6), on application by one of the parties to that marriage, in the absence of any agreement between them regarding the division of their assets, order that such assets, or such part of the assets, of the other party as the court may deem just, be transferred to the first-mentioned party.” In conclusion, this means that parties married out of community of property without the accrual will be entitled to claim redistribution of assets despite their marital regime in their antenuptial contract. However, it must be kept in mind that this does not grant a party automatic entitlement and that the party claiming in terms of section 7(3) of the Divorce Act still has to prove their contribution towards the other party’s estate. Each matter will be dealt with on its own merits and the courts may make an order on what may seem just and equitable. Reference list: EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others (CCT 364/21; CCT 158/22) [2023] ZACC 32 (10 October 2023) While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup
Can you inherit from someone you have merely been living with?
In South Africa, the number of couples who are permanently living together in life partnerships is increasing every year. What are the consequences that would ensue if either of the partners in the relationship dies without a will? Should a surviving partner in such a scenario have a claim for inheritance or maintenance from the deceased estate? If yes, under what circumstances would a claim be allowed? The answer to these questions will be explored in light of the Bwanya v Master of the High Court, Cape Town and Others case. The facts of the Bwanya case were as follows: Ms Bwanya and Mr Ruch entered into a romantic relationship in 2014. They grew so intimate that they moved in together as well. The couple’s friends all knew about their relationship, and Mr Ruch even introduced Ms Bwanya to his friends as his wife. The romantic relationship they had, comprised all the characteristics of a marriage. For example, Mr Ruch bought all the groceries, and household necessities and also provided for the household expenses. Ms Bwanya provided him with love, care, support, and companionship. In addition, the couple also made future plans together. For example, Mr Ruch has been helping Ms Bwanya obtain her license. The deceased had also planned to buy her a car, as the couple planned to start a cleaning business together. The two also had plans to cement their relationship with a baby. In 2015, the pair got engaged. The couple planned a trip to Zimbabwe for lobola negotiations to commence. Mr Ruch also planned on selling one of his properties in preparation. Sadly, two months before the trip to Zimbabwe, Mr Ruch passed away. He had nominated his mother in his will who had already predeceased him. Thus, he died intestate. Ms Bwanya, after the death of her life partner lodged a two-fold claim against the deceased estate. Firstly, to inherit under the Intestate Succession Act, and secondly, to claim maintenance under the Maintenance of Surviving Spouses Act. The basis of the claim was that the relationship between the two, was akin to a marriage and that the parties had undertaken reciprocal duties of support. The Constitutional Court in its judgement, held that permanent life partnerships must be accorded the necessary respect in our society as they are one of life’s realities. Furthermore, the court declared that the relevant legislative provisions constitute unfair discrimination and are constitutionally invalid. On this basis, the court held that when the term “spouse” is used in the provisions, it must include: “a surviving partner of a permanent life partnership terminated by the death of one partner in which the partners undertook reciprocal duties of support and in circumstances where the surviving partner has not received an equitable share in the deceased partner’s estate”. The effect of this judgement is that a surviving partner in a permanent life partnership will be able to claim for maintenance and inheritance. However, it must be emphasised, that this legal entitlement of a surviving life partner does not flow from the mere act of living together permanently as a couple. Permanent life partners do not obtain a right to inherit or claim from a deceased estate by the operation of law. The court qualified the claim by stating that a surviving partner can only claim where the parties had undertaken reciprocal duties of support. The court gave a guideline as to what can be considered to determine whether or not there is a reciprocal duty of support between life partners. A reciprocal duty of support between life partners may entail the following: “…such as loyalty and sympathetic care and affection, concern…as well as the more material needs of life, such as physical care, financial support, the rendering of services in the running of the common household or a support-generating business…To my mind, these features are not foreign to permanent life partnerships….In all these respects, permanent life partnerships are very much akin to marriages.” In conclusion, it is clear from this judgement that a surviving life partner is not left without a claim when their life partner has predeceased them. However, this claim is not guaranteed because the claim does not flow from the mere fact of living together. The court carefully set out the circumstances under which the claim would possibly be allowed. Reference List: 1. Bwanya v Master of the High Court, Cape Town and Others 2022 (3) SA 250 (CC). Marriages on the decline in South Africa (02-10-2023) <https://www.statssa.gov.za/?p=16142> While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup
Why a Notary? – Part 2
In Part 1 of this article, we looked at the roles and functions of a notary, especially their general duties. In this part, we will look at the work reserved for notaries and a notary’s role in the certification and authentication of documents. One will see the necessity and importance of using a notary. The Deeds Registries Act requires notarial attestation (official certification by a notary) for several types of documents to be registered in the Deeds Office. These include, but are not limited to: 1. Antenuptial contracts; 2. Notarial bonds; 3. Personal servitudes, for example, a usufruct; 4. Praedial servitudes, for example, a right of way; 5. Long-term leases, cessions and subleases as well as cancellation and releases thereof; 6. Cession of exclusive use areas (in terms of the Sectional Titles Act). Notarial functions and document certification The notary, in their capacity as a commissioner of oaths, can authenticate and certify affidavits signed in their presence. The notary can also certify documents as true copies, prepare powers of attorney for use in the Deeds Office, and the preparation of various other non-notarial documents in notarial form for example deeds of donation, trust deeds and wills. Authentication procedures and international requirements Authentication involves a notary confirming the identity of the person signing a document. For documents signed in South Africa to be used abroad, or those signed abroad for use in South Africa, there are specific procedures. Typically, a notary authenticates the signer’s signature. This notary’s signature is then verified by the High Court Registrar, and further by the Department of Justice Secretary. However, these steps can sometimes be bypassed, allowing the Department of Justice to directly authenticate the notary’s signature. Simplifying authentication through the Apostille Convention This authentication process is complex but necessary for legal acceptance of documents in other countries. However, if the foreign country is part of the Hague Convention, the process is simpler. The Apostille Convention, established on 5 October 1961, removes the need for multiple steps. In this case, only the High Court in South Africa needs to authenticate the notary’s signature using a specific template, known as “apostilling” the document. Rule 63 and authentication of foreign documents in South Africa Rule 63 of the High Court specifies how to authenticate documents signed outside South Africa for use within the country. A document from abroad is considered valid in South Africa if authenticated by one of the following: a) The head of the South African diplomatic or consular mission or their authorised delegate. b) A Consul General or the Consul General of the United Kingdom. c) Any authorised government authority in the foreign country responsible for document authentication. d) a notary public whose signature must be authenticated by any of the authorities mentioned in points (a), (b) or (c). e) A notary public in the United Kingdom of Great Britain and Northern Ireland, Rhodesia, Lesotho, Botswana, or Swaziland. Notarial seals and evidential significance The rules state that the person authenticating documents should use their official seal if they have one. If not, they must state this under their signature. In South Africa, notaries aren’t legally required to use a seal (which is typically a rubber or metal stamp with “notary” and the notary’s name on it) on the documents they attest. However, it’s common practice for notaries to use such seals. Notary authentication is highly regarded for proving the authenticity of the signers and the accuracy of the document’s information. Reference list: 1. Act 47/1937 2. Sec 87(1) 3. Sec 61(1) 4. Sec 65(1) 5. Sec 75(1) 6. Sec 77(1) 7. Act 95/1986 Sec 25(1) and Sec 27(1) 8. Van der Merwe FE Notarial Practice 1st Edition p 20 – p 21 9. Van der Merwe FE Notarial Practice 1st Edition p 10 While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup
Is it possible to override a registered antenuptial contract with a postnuptial agreement?
Before the Matrimonial Property Act 88 of 1984 (MPA) was introduced, matrimonial property law in South Africa was governed by the immutability principle. This principle dictated that the property regime chosen by a couple at the time of their marriage could not be altered afterwards. The case of Honey v Honey in 1992 (93 SA 609 (W)) reinforced this, stating that under common law, spouses couldn’t modify their matrimonial property system through an agreement. Any contract attempting to change the prenuptial agreement was considered void and unenforceable. However, the introduction of the MPA softened this rigid stance by providing ways for couples to change their matrimonial property system after marriage. Matrimonial Property Act In terms of section 21(1) of the MPA, a husband and wife, whether married before or after the commencement of this Act may jointly apply to a court for leave to change the matrimonial property system including the matrimonial power, which applied to their marriage. The court has the authority to approve changes to a matrimonial property system if it is convinced that: there are sound reasons for the proposed change. sufficient notice of the proposed change has been given to all creditors of the spouses. the proposed change will prejudice no other person. Upon meeting these conditions, the court can order that the existing matrimonial property system no longer governs the marriage and can permit the spouses to execute a notarial contract that will define their matrimonial property system going forward, subject to any conditions the court deems appropriate.1 AM v HM 2020 (8) BCLR 903 (CC)2 The abovementioned case concerned the question of whether a contract concluded by married persons, which departs from the terms of their antenuptial contract, is valid and enforceable. The applicant (wife) and respondent (husband) were married in community of property with the exclusion of the accrual system. During their marriage, the applicant (the wife) drafted an agreement to revise specific terms of their antenuptial contract. This new agreement proposed that she would receive half of the respondent’s (husband’s) estate and that he would continue to provide for her maintenance. The husband signed this agreement on 10 November 2014, and following this, the couple continued to live together as husband and wife. On 30 November 2014, the respondent indicated that he intended to institute divorce proceedings and issued a divorce summons against the applicant. The applicant filed her counterclaim where she sought, amongst other things, a declaratory order that the agreement was valid and binding and that it was signed in settlement of all claims or disputes that might emanate from the divorce action. The Regional Court granted the divorce order and dismissed the counterclaim. It held that the agreement was not entered into in contemplation of a divorce and that it would be against the public policy to allow parties to opt out of their marital regime without the mechanism provided for in section 21(1) of MPA. High Court The applicant applied to High Court for leave to appeal. The appeal was upheld by the High Court which overturned the decision of the Regional Court. It held that the agreement was enforceable since it had been concluded in contemplation of a divorce with its purpose being to constitute a settlement agreement. Supreme Court of Appeal The respondent appealed to the Supreme Court of Appeal. This court noted that since the parties did not approach a court in terms of section 21(1) of the MPA to sanction the change, the central issue was whether the agreement was made in contemplation of a divorce. It held that the applicant failed to prove that the agreement was concluded in contemplation of a divorce. The Supreme Court of Appeal upheld the appeal and set aside the order of the High Court. Constitutional Court The applicant approached the Constitutional Court for leave to appeal. In a unanimous decision, the Constitutional Court held that while the matter engaged the court’s jurisdiction, it was not in the interest of justice to grant leave to appeal. This was because the applicant introduced several constitutional issues in terms of contractual freedom, dignity, and unfair discrimination. She also had a constitutional complaint in the interpretation of section 21(1) of MPA. The Court held that these issues had not been ventilated in the other courts and this would in effect render the Constitutional Court a court of first and last instance. Furthermore, it was held that the Supreme Court of Appeal did not prescribe a bar on all agreements between spouses married out of community of property. The finding only related to the agreement at hand. The appeal was dismissed. Given the previously discussed legal context, it’s a well-established principle that spouses cannot modify an antenuptial contract after marriage without first obtaining court approval as outlined in section 21(1) of the Matrimonial Property Act (MPA). However, this restriction doesn’t prevent spouses who are married out of community of property from entering into other types of agreements. Reference list: section 21(1) of the Matrimonial Property System 88 OF 1984 J Heaton: South African Family law (3rd ed) AM vs HM 2020 (8) BCLR 93 (CC) Honey v Honey 1992 93) SA 609 (W) While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup