The Constitutional Court declared parts of the Divorce Act unconstitutional this week. Historically, many women found themselves in marriages, out of community of property, where their husbands’ assets were caged off. However, such women contributed to their husbands’ wealth by looking after their children and maintaining the home. In other words, but for women’s efforts, these men would not have been able to accumulate their wealth.
However, when such relationships ended, women would be left with nothing and men could leave with all the wealth. The Divorce Act sought to remedy this. It provides that the “poorer” person in a divorce may ask the court to reach into the “richer” person’s assets that were previously blocked off. On Tuesday, the apex court merely expanded the pool of who could apply for this remedy.
SA courts have long acknowledged domestic work, historically the domain of women, as being no different to work. This has helped undo gender disparity, since men can no longer leave marriages with all the wealth they’ve accumulated, which could only have occurred with their erstwhile wives’ contributions to the family.
It is encouraging that courts are living up to the constitution’s project of undoing historical inequality that, left unaddressed, can perpetuate ongoing inequality.
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