Formerly the law pertaining to marriage entrenched a patriarchal system in which a man was legally entitled to control his wife and where women had a weak bargaining position in marriage as contended by Ms Ancer. Considering modernity and the development of the outlook of society many couples opt to get married out of community property with the exclusion of the accrual system to ensure that all assets they have worked so hard for, and sacrifices endured were not in vain when facing the implication of the divorce.
However, the recent judgment of KRG v Minister of Home Affairs of 2022 challenged the constitutionality and validity of section 7(3)(a) of the Divorce Act of 1979 (hereafter “the Act”). This section makes provision for the division of assets and maintenance of parties when undergoing a divorce.
Section 7(3)(a) of the Act provides that:
“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 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, or may, subject to the provisions of subsection (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 other words, this section provides that out of community of property marriages with the exclusion of the accrual system entered before the Matrimonial Property Act came into existence are excluded thus marriages entered after the said Act are not made provision for.
It must be noted that the applicant married her husband in March 1988 out of community of property with the exclusion of the accrual system and was married for 30 years during which the applicant raised her three children to adulthood. According to the section in contention the applicant would not be entitled to claim for any assets or possessions that accumulated in the marriage or maintenance. The applicant will only walk out of the marriage with the small inheritance received from her mother. The applicant contended two aspects pertaining to the above-mentioned section:
- The applicant contended that section 7(3)(a) of the Act arbitrary and irrationally differentiates between people being married before and after 1 November 1984; and
- The applicant contended that the cut-off date in section 7(3)(a) of the Act disproportionately impacts women as it deprives the potential benefits of a just and equitable redistribution order and unfairly discriminates based on sex, gender, marital status, culture, race, and religion.
The court found that based on the contentions a court may interfere in a private relationship to avoid injustice. Further, no injustice can be done if the same power is available to the judiciary for marriages entered into out of community of property with the exclusion of the accrual system after the commencement of the Matrimonial Property Act of 1984. The power of the court’s discretion is circumscribed and limited to two scenarios in section 7(4) that the party must have contributed directly or indirectly to (a) the maintenance, or (b) increase of the party during the subsistence of the marriage to have the order granted in their favour. Resultantly, the court is requested to issue an interim order that section 7(3)(a) is read without the time bar and that Parliament has 18 months to remedy the constitutional defect.
The court found based on the contentions that by enforcing a distinction on the operation of marriages concluded before and after 1 November 1984 economically disadvantaged parties from the former group to that of the latter solely based on the date of marriage. This causes disparity and inequity that ensues where parties are married out of community of property and where one party contributed to the maintenance or increase of the estate of the other party, file for divorce. Further to incorporate a time limit for the section 7 (3) application for economically disadvantaged parties who were married after 1 November 1984 as they are unable to approach a court to make an order that is just and equitable. Therefore, the equality issue is not solely attributable to race, gender, or religion but also to economic inequity. In other words, the spouse whose estate decreases because of a direct or indirect contribution by the other in which the other spouse’s estate increases can be described as an unfair economic advantage. However, this remedy is only available to parties married before 1 November 1984.
The court held that section 7(3)(a) is declared inconsistent and invalid with the Constitution so that it limits the operation of section 7(3) of the Act. Further, the inclusion of the words “entered into before the commencement of the Matrimonial Property Act of 1984” in section 7(3)(a) of the Act is declared inconsistent and invalid. It should be read as if the words did not appear in the section. The court held that there shall be no legal consequences for any act done or omission or fact existing concerning a marriage entered into out of community of property with the exclusion of the accrual system after 1 November 1984 before this order was made.
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Shervona Tia Marshall