A Step Towards Inclusivity: The Divorce Amendment Bill

Divorce is not easy. On anyone.

We know that.

Whether the divorce is acrimonious or amicable, the end result is the same. There’s usually a dissolution of the marriage, division of the estate, payment of maintenance, custody, and guardianship of children. Of course, this is all matter dependent.

But essentially, everything changes.

There’s often a whole list of things that the erstwhile couple now has a duty to uphold or a list of things that they can no longer do. Everything is set out in a court order, and everything is slightly tense.

Lives are kind of uprooted, and that’s a good outcome.

What are the actualities of a divorce?  

In an uncontested divorce (meaning the couple reached an agreement on all issues), a settlement agreement is drawn up, signed by both parties, which is thereafter made an order of court. This settlement agreement will form part of the divorce order.

A relatively easy(er) process. Not too much damage is wrought.

But if the divorce is contested (meaning it’s acrimonious), it means that the couple aren’t able to agree on anything. Here, based on arguments before the court, a judge will make the final decision as to how, in accordance with the marital property regime (and according to an ANC – if applicable), the couple’s estate will be dissolved.

Again, whether contested or not, the result is the same. The parties, now divorced, will need to abide by the court order. The divorce order will set out what the legal position is and how the property must be dealt will be dealt with.

And those are – at a very high level – the basics of divorce.

Now there’s one thing that we mentioned in our article on the new Marriages Bill. And that revolves around our constitution. As a reminder –

Section 9 of the Constitution, entitled "Equality", states that:

"The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth."

This therefore means that discrimination against anyone based on their race, gender, marital status, culture, or sexual orientation is against the law.

And this is – once again – important due to the fact that not all divorces (and therefore not all marriages) are equal before the law. Despite Section 9 of our Constitution.

What gives?

Proposed changes to the Divorce Act

In the matter of Women’s Legal Centre Trust v President of the Republic of South Africa and Others, the Constitutional Court declared the Marriage Act No. 25 of 1961 (the “Marriages Act”) and the Divorce Act No. 70 of 1979 (“Divorce Act”) to be inconsistent with sections 9, 10, 28 and 34 of the Constitution in that they fail to recognise marriages solemnised in accordance with Sharia law (Muslim marriages), which have not been registered as civil marriages, as valid marriages for all purposes in South Africa, and to regulate the consequences of such recognition. The exclusion of Muslim marriages in this Act was declared unconstitutional.

How did this come to pass? Well, the Divorce Act (amongst other things)–

Ø regulates the division of assets and the provision of maintenance of parties dissolving their marriage, with the aim of ensuring justice and fairness. The Divorce Act, therefore, seeks to ensure that the protection of the interests of parties dissolving their marriage and the welfare of dependent children through access to maintenance during and after divorce.

Ø provides for the protection of any assets parties may have brought into a marriage in a community of property, but which they would otherwise lose. This protection allows the forfeiture by the other party of the patrimonial benefits of marriage.

However, Mogamad Ganief Hendricks, the leader of the Al Jama-Ah political party has stated that –

 “To date, parties in Muslim marriages are being left destitute, with their children, because they are cut off from the civil remedies available in the Divorce Act upon dissolution of their marriage. The vulnerabilities that this creates for parties in a Muslim marriage and children include risks of violence and abuse, sexual and economic exploitation and increased adverse mental health impacts and harms their human dignity”.

This sentiment was echoed by the Constitutional Court in Women’s Legal Centre Trust matter, where the Constitutional Court declared –

Ø Section 6 of the Divorce Act is unconstitutional as it fails to provide for mechanisms to safeguard the welfare of dependent children born of Muslim marriages at the time of dissolution of the Muslim marriage in the same or similar manner as it provides for mechanisms to safeguard the welfare of dependent children born of other marriages that are dissolved.

Ø Section 7(3) of the Divorce Act was declared unconstitutional in that the section fails to provide for the redistribution of assets on the dissolution of a Muslim marriage when such redistribution would be just.

Ø Section 9(1) of the Divorce Act was also declared unconstitutional in that the section fails to provide for the forfeiture of the patrimonial benefits of a Muslim marriage at the time of its dissolution in the same or similar terms as it does in respect of other marriages that are dissolved (Parliamentary Monitoring Group).

This led Hendricks, the leader of the Al Jama-Ahpolitical party, in accordance with section 73(2) of the Constitution of the Republic of South Africa, to introduce the Divorce Amendment Bill, 2022 (“the bill”) in Parliament.

As set out by Businesstech–

“As a result of South Africa’s wide and diverse population, regulators and legislation are playing catchup in streamlining family law. Current legislation does not regulate some religious marriages, such as Muslim, Hindu, and other customary practices in some African families.

During the same briefing, the minister announced the Cabinet’s approval of the new Draft Marriages Bill for public comment.

The act seeks to make an ‘umbrella’ marriage policy that makes a universal marriage bill applicable to people of all types”.

The new bill aims to make changes in order to provide mechanisms that will safeguard the welfare of minor or dependent children born of Muslim marriages. The bill also aims to provide for the redistribution of assets on the dissolution of a Muslim marriage (providing for the forfeiture of patrimonial benefits of a Muslim marriage).

The Divorce Act also unfairly discriminated against children of married parents and those of unmarried parents – which is so old-school.

There are 5 key clauses that are being proposed to amend the Divorce Act -

• Insertion of a new definition of Muslim marriage recognised by the Constitutional Court Judgment to be part of South Africa’s common law.
• Amendment of section 6 of the Divorce Act by providing safeguarding mechanisms for minors or dependants of a Muslim Marriage.
• Amendment of section 7 of the Divorce Act by empowering a court to grant a divorce decree (on the dissolution of a Muslim marriage) and to make an order with regard to the redistribution of assets.
• Amendment of section 9 of the Divorce Act to empower a court when granting a divorce, a decree on the dissolution of a Muslim marriage to give an order that patrimonial benefits of a Muslim marriage be forfeited in stipulated terms.

And that would appear to be the first step in righting the wrongs of old legislation that doesn’t take the tapestry and beautiful rainbow quality of our nation into account.

The Bill was approved by the cabinet in June 2023 (Business tech).

Another interesting titbit

While not related to the Divorce Amendment Bill as discussed above, we believe this to be an interesting case to share in so far as it deals with forfeiture of a community of property estate –

When the matter calls for forfeiture! 

There are certain times when one of the parties to a marriage will ask for forfeiture of the other’s spouses’ half of the estate (when married in a community of property). This isn’t the norm and is usually only granted under extreme conditions.

Take the matter of M v M (14861/2018) [2023] ZAGPPHC 48 as an example. Here the North Gauteng High Court ruled in favour of the wife who had claimed forfeiture of the joint estate due to the misconduct of the husband.

The basic storyline - the wife had relocated to Germany after accepting a really fantastic job opportunity. Her husband refused to relocate and remained in South Africa. To top things off, he also remained in their family home, for which the wife had paid. The husband's only contribution was to pay for the electricity (when it was on #loadshedding). When he received his pension fund, he did not share any of the money with his wife instead kept, all of the money for his own benefit.

Not a quid pro quo type of arrangement.

During arguments before the court, there were allegations of infidelity from both sides. The difference is the wife didn’t rely on infidelity to claim forfeiture. Her argument for forfeiture was based on the fact that her husband had not contributed towards the household and would unduly benefit if he received half of the joint estate, which included her pension fund.

The Court ruled in favour of the wife, and the husband forfeited his portion of the joint estate.

Kind of a landmark decision.

While this isn’t in the ordinary course, it’s a mechanism that seems to be gaining momentum, especially in awful situations.

If you have any questions on the information we have set out above or have a personal issue which you want to discuss with us, please don’t hesitate to contact us at NVDB Attorneys. We are a law firm that considers honesty to be core to our business. We are a law firm that will provide you with clear advice and smart strategies - always keeping your best interests at heart!