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The Divorce Act

The North Gauteng High Court declared Section 7(3)(a) of the Divorce Act unconstitutional – Does this have an immediate impact?

In a judgment that was recently handed down by the North Gauteng High Court on 11 May 2022, a portion of the Divorce Act was declared unconstitutional.

Although High Courts have the authority to declare an Act, or a Section included in an Act unconstitutional, it does not mean that it is immediately unconstitutional. The Constitutional Court of South Africa first needs to make a final decision.

An application has already been made to the Constitutional Court for the judgment to be confirmed. If the judgment is indeed confirmed by the Constitutional Court, it will have the effect that Section 7(3)(a) of the Divorce Act is unconstitutional and invalid to the extent that it limits the operation of Section 7(3)(a) to marriages out of community of property ‘entered into’ before the commencement of the Matrimonial Property Act, 1984.

It will only be in effect once the Constitutional Court has formally made the confirmation.

Section 172 (1)(b) of the Constitution, provides that when deciding a constitutional matter within its power, the Constitutional Court may make any order that is just and equitable, including an order limiting the retrospective effect of the declaration of invalidity; and an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.

Considering the issue at hand, the Constitutional Court may suspend the operation of its order, to afford the legislature an opportunity to remedy the defect giving rise to the unconstitutionality. However, it is our view that a suspension of the operation of the order may not be necessary in this case, should it be confirmed to be unconstitutional, as it will merely entail a deletion of Section 7 (3)(a) from the Divorce Act.


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This article is not intended to constitute legal advice and is produced for information purposes only and to provide a general understanding of the legal position relating to the topic. It is recommended that advice relating to the specific circumstances of your situation be sought from our attorneys before acting upon the content of this article. This article was written at a particular point in time and accordingly may not always reflect the most recent legal developments, if any, applicable to the relevant topic. Kaplan Blumberg and its partners and/or employees, are not responsible for any consequences which may follow upon any decision taken to act upon the information provided in this article.