Divorce and Family Law

Redistribution of Assets with Divorce: Greyling Ruling’s Impact.

Case Name: Greyling vs. the Minister of Home Affairs and four others

Court: North Gauteng High Court, Case No. 40023/21

Date of Decision: 11 May 11 2022

The wording of Section 7(3)(a) of the Divorce Act, 70 of 1979 (the Act) was deemed inconsistent with the Constitution and unlawful by the High Court of South Africa Gauteng Division in Pretoria.

The Case’s Importance

• In the Greyling case, a wife (the “Applicant”) challenges the legality of a Divorce Act provision that denies her the prospective protection of a just and equitable remedial judicial order.
• The parties were married in March 1988 without community of property and without the accrual system.
• Before the wedding, the husband’s father advised her that no community of property and accrual would apply to the marriage, and the applicant was given a one-page antenuptial contract to sign.
• During the marriage, the wife raised three children to adulthood, lived on a big farm in a rural area, and was heavily involved in community service.
• Her husband was a very successful farmer who thrived financially and was able to purchase other farms; the family lived in luxury.
• However, due to abuse, the couple divorced in 2016.
• The court was not asked to decide whether the Applicant would be granted a redistribution order in her divorce, but rather whether it was constitutional for spouses married out of community of property with the exclusion of the accrual system after 1 November 1984 to be denied the relief provided for in Divorce Act section 7(3).

Important Takeaways

• The case underscores the potential unfairness of the Divorce Act provision that prohibits spouses married outside of community property with the exclusion of the accrual system after 1 November 1984 the potential protection of a just and equitable remedial judicial order in the event of divorce.
• It calls into question the legality of antenuptial agreements and the ability of parties to make informed decisions when entering into such arrangements.
• It may set a precedent for future cases with similar difficulties, leading to revisions in South African laws governing marriage and divorce.
• It may also have an impact on legal practice and the legal techniques and advice that divorce attorneys provide to their clients.

Conclusion

The fundamental issue in this case was that the Divorce Act does not allow a court to make any decision respecting a “redistribution of assets” for spouses married out of community of property without accrual after 1984, which the Court said was unconstitutional.

The Constitutional Court must determine whether the judgment was correct.

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