Ruling may rewrite rights of spouses

The prospect of a marriage ending creates uncertainty, both personally and financially. In fact, many couples remain in unhappy and stressful situations out of fear that they will be forfeiting their lifestyle due to an income disparity with their spouse.

However, a historic judgment made by the Pretoria High Court this week in favour of an estranged wife of a farming tycoon has shaken the foundations of marriages that are bound by a prenup.

The woman, who is in the process of divorce after almost  30 years of marriage, succeeded in her application to challenge the constitutionality of divorce laws, which exclude women like her –  who signed or were forced to sign a prenup with no accrual after November 1 1984 – from claiming for a redistribution of assets.

Though the judgment still has to be considered by the Constitutional Court, it has huge implications for the married and those in the process of divorce – even those who are considering marriage or divorce.

The Commission on Gender Equality (CGE) welcomed the judgment, saying it aims to place women who entered into marriage out of a community of property without an accrual system after 1984 on the same footing as women who entered into similar marriages before 1984.

“It is common that most women are unemployed in South Africa and as such, looking after the assets of the spouse may arguably be a form of contribution that the courts may consider. An example of this may be a spouse that looks |after rental properties of the other spouse,” said the commission’s spokesperson Javu Baloyi.

“The CGE awaits the confirmation of the unconstitutionality of Section 7(3)(a) of the Matrimonial Property Act 1984 by the Constitutional Court and particularly on whether the judgment should apply retrospectively,” he said.

Senior associate at Adams & Adams Attorneys, Shani van Niekerk, said if confirmed by the ConCourt, the order by Judge Elmarie van der Schyff on Wednesday does not mean that such a redistribution claim is automatic.

“It should, however, be kept in mind that such a redistribution claim is not an automatic entitlement.

“A spouse instituting a Section 7(3) claim will still need to prove their direct or indirect contributions made towards the estate of the other spouse to be successful.

“The court hearing such an application will then have to decide upon not only whether such a spouse is entitled to a claim, but also the extent thereof,  which may differ greatly from matter to matter,” said Van Niekerk.

Van Niekerk said examples of direct and indirect contribution include assisting in a spouse’s business, investing funds in a business venture of a spouse and taking care of children and a household.

“The court has a wide discretion in terms of what is taken into account,” she said.

Van Niekerk has urged individuals to seek legal assistance if they are contemplating a divorce or embroiled in a divorce.

“An attorney can assist in formulating a claim in terms of Section 7(3) alternatively defending such a claim,” she said emphasising that the Pretoria High Court order must first be confirmed by the Constitutional Court.

“And, as such, divorces may be left in abeyance pending the order of the Constitutional Court,” she said.

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