Judge Elmarie van der Schyff finds part of the Act discriminates against women and is unconstitutional.
The Gauteng high court has declared unconstitutional a section of the Divorce Act that the judge said was unfair, especially to women. The section barred those married out of community of property and without the accrual system, from benefiting, on divorce, from what they might have contributed to the marriage.
Judge Elmarie van der Schyff has now deemed section Section 7 unconstitutional, striking it from the Divorce Act, and referring the matter to the Constitutional Court for confirmation. Judge van der Schyff said she had not been called upon to determine whether or not the applicant was entitled to any assets in her particular divorce but whether the section passed constitutional muster.
An expert report, submitted to the court, said that many women were still unable to access and realise their rights and “the decision to get married is therefore one that many women make with less autonomy than men, and with less agency to insist on terms that would be advantageous to them”.
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