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Family law — divorce — division of assets following — Matrimonial Causes Act 1985 — s 7 — not applicable to marriages dissolved under Matrimonial Causes Act [Chapter 39].
Statutes — interpretation of — presumption against retrospectivity — Matrimonial Causes Act 1985 — s 7 — meaning "at any time thereafter".
The plaintiff was formerly married to the defendant, but they were divorced in terms of the Matrimonial Causes Act [Chapter 39] in October 1985. That Act was repealed by the Matrimonial Causes Act No. 33 of 1985, which came into effect in February 1986. S7(1) of the new Act provides that "in granting a decree of divorce ... or at any time thereafter" the court may make an order for the division or distribution of the assets of the spouses. The plaintiff, relying on this provision, sought a division of the assets of her former marriage, and in particular sought to have the former matrimonial home transferred into her name. The defendant excepted to the claim on the grounds that the provisions of the new Act do not apply to marriages dissolved under the old Act.
Held, that there was a vast difference between the old and the new Acts in respect of the grounds of divorce and the courts' powers in relation to the proprietary rights of the parties and the maintenance. Under the old Act, divorce was granted on the guilt principle, and maintenance could only be claimed at the time of divorce by the innocent party. The new Act replaces fault with failure and gives the courts wide powers to deal with the assets and maintenance for either party. These powers may be exercised at the time of the divorce or at any time thereafter.
Held, further, that there is a presumption against retrospectivity of legislation. If the legislature had intended persons divorced under the old Act to acquire the rights provided under the new Act, the new Act would have said so expressly and clearly. The grammatical construction and plain meaning of s 7(1) of the new Act showed that it could only apply to a decree of divorce granted under the new Act.
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