Dec 8, 2022

Mawazo Writing Africa

Writing about the main

Mrs G’s court victory a win for women as court declares portions of Divorce Act unconstitutional

A landmark ruling by the Pretoria High Court this week successfully ruled that the divorce law was unconstitutional and invalidated, paving the way for women who did not earn any financial income during their marriage and would therefore not be entitled to a settlement.

Starting this week, women who married after November 1, 1984, when the Marital Property Act came into force, can now challenge their share in the marriage and ask the courts – previously barred from deciding it – to issue a Arranging the comparison is fair and considers the role women play in the household as valuable.

The application – Submitted by Ms. G., a woman who has been married for 30 years and has raised three children to adulthood – was decided to obtain a court order to stay her divorce so she could challenge the constitutionality of the divorce law.

Ms G. was 22 years old when she married a farmer in March 1988. Shortly before the wedding, her father-in-law-to-be was proclaimed that there would be no community of property

She and her husband lived on a large farm in a rural area and had three children, all high achievers. This meant that Ms. G. was very committed to her schooling, did a lot of transportation, was a model wife and mother, and was heavily involved in community work.

Her husband was now a successful farmer received agriculture, did very well financially and was able to buy more farms.

The family lived a luxurious life, driving luxury cars and enjoying holidays abroad. However, the marriage was abusive and the couple separated in 2016. Ms G. then set about finding a way to challenge what she felt was an unfair situation in which her imminent divorce would normally result in her being with no more than a small inheritance was received from her mother.

In terms of the Divorce Act, she would not be entitled to make any claim against her husband – not any part of her property and none of what she had have accumulated during their marriage 30 years together simply because they did not bring in any income. And she couldn’t claim child support because of her inheritance.

“My client went to several lawyers who told her she didn’t have a case. She finally came to me in 2019, and I was keen to do it because I’ve always thought the law was unfair,” said Clarks Attorneys, Beverley Clark, specialist family lawyer.

“I’ve had so many clients, at whom the woman made such an unfair deal. Many women who have been homemakers are trapped in unhappy or abusive marriages because they know they will get away with nothing. This order will make a difference for them,” she said, adding that many women had been anxiously awaiting the outcome of Ms. G.’s application.

“This is not about bread and milk money. It is about fair compensation and it is about allowing the courts to intervene and exercise their discretion to avoid injustice. This order is groundbreaking and the message needs to get across.”

Ms. G. asked the court to declare the divorce law unconstitutional and invalid and to grant the courts the right to rule on the division of assets in cases where women have contributed to the marriage in many ways other than financially and are being deprived of the right to seek exoneration.

Her motion was in relation to the Ancer Report, which was authored by clinical psychologist Judith Ancer like that Act prior to the enactment of the Marital Property Act cemented a patriarchal system in which a man had the legal right to control his wife and women had a weak negotiating position.

“Assuming that the husband’s In 1993 the head of the family was removed, this means that the patriarchal system existed for nine years after the matrimonial property law came into force, but a woman lost the opportunity to have a To apply under Section 7(3) of the Divorce Act when the demarcation system tem introduced.”

This meant, Ancer says, that there was a time lag “between something that became law on paper and the entrenched systems of romantic and marital relationships adapting to a new legal position”.

On Wednesday the Pretoria High Court agreed, ruling that part of South Africa’s divorce law is unconstitutional.

It introduces significant changes in how divorce is handled when couples are married outside the community Finding property amounts to unfair discrimination.

“When the news broke, my client cried. she was so happy She fought hard and it was worth it. It’s going to change things for so many women,” Clark said.

The order will now go to the Constitutional Court for confirmation. Once approved, it will have a significant impact on many divorces.

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