Striving for substantive gender equality in family law: Selected issues

Abstract

The article evaluates the rules regarding the division of matrimonial property upon divorce from a gender-equality perspective. In respect of the areas where substantive gender equality is lacking, proposals for law reform are made. The article firstly shows that the rigid enforcement of antenuptial contracts sometimes results in substantive gender inequality. The author pleads for judicial realism and an awareness of the dangers accompanying the assumption that the ordinary rules of the law of contract can be applied in the usual way to contracts between future spouses and that any resulting gender inequality can be justified by relying on the autonomy of the parties to the contract. The author further shows that forfeiture of patrimonial benefits and the limited judicial discretion to redistribute property upon divorce fall short of the object of attaining substantive gender equality. The suggested solution is the introduction of a broad judicial discretion to redistribute property upon divorce, which should be available in all civil marriages. The author further points out that spouses are often in an unequal bargaining position when they negotiate divorce settlement agreements and that the weaker spouse is often prejudiced. The suggested solution is that the court be compelled to investigate settlement agreements much more carefully and to take the circumstances in which each agreement was concluded into account. Finally, the author argues that the property which can be divided upon divorce is defined too narrowly. The narrow definition usually prejudices the spouse who is not the main breadwinner, once again resulting in substantive gender inequality. The author suggests that a broad, non-exhaustive definition of “property” should be inserted in the Matrimonial Property Act 88 of 1984 and the Divorce Act 70 of 1979.