Married out of community of property? You could now claim assets when you split

Presenter Wasanga Mehana chats to Natasha Truyens, a senior attorney specialising in family law.

  • Spouses married out of community of property can now apply to claim assets when they split

  • The Gauteng High Court has deemed parts of the Divorce Act unconstitutional and discriminatory against women

  • Attorney Natasha Truyens says the ruling will have a major impact on the future of antenuptial contracts



Image copyright: fizkes/123rf.com

Spouses married out of community of property and without the accrual system don't have to walk away empty-handed when they get divorced, according to a landmark court ruling.

The Gauteng High Court in Pretoria has declared section 7(3)(a) of Divorce Act 70 of 1979 unconstitutional.

The section refers to the distribution of a couple’s assets when getting divorced and previosuly did not allow for a court to make a “redistribution order”.

This means that people married out of community of property and without the accrual system could not benefit from what they might have contributed to the marriage when they got divorced.

Attorney Natasha Truyens says the ruling will mainly affect people married out of the community of property without the accrual system.

Those parties will now be able to apply for financial compensation for their contribution to the marriage, if the court deems it just.

"In the past, those parties that were getting a divorce couldn't ask anything from the other party but now with this order, they can invoke the provisions of Section 7(3) of the Divorce Act and they can ask the court for a redistribution order. In other words, they can ask the court to give some of the other party's assets to them," Truyens explains.

She says the onus will be on the spouse to prove to the court that they qualify for the redistribution of assets.

Truyens says judges would have to consider various factors, including:

  • any direct or indirect contribution made by the party to the maintenance or increase of the estate of the other person

  • the existing means and obligations of both parties

  • any donation made by one party to the other during the substance of the marriage

  • any other factors which should be taken into account

According to Truyens, the ruling will have a major impact on the future of antenuptial contracts if it is upheld by the Constitutional Court.

The Pretoria High Court delivered a judgment which declared Section 7(3)(a) of the Divorce Act inconsistent with the Constitution and invalid to the extent that the provision limits the operation of Section 7(3)(a) to marriages out of community of property entered into before the commencement of the Matrimonial Property Act (MPA) of 1984.

Natasha Truyens, senior associate attorney - Barnard Incorporated Attorneys

The practical implications of this judgment would mean that any person who entered into an antenuptial contract without accrual after the commencement of the Matrimonial Property Act may now ask a court for a redistribution of assets, thus overriding the content of their signed antenuptial contract if a court deems it appropriate and just.

Natasha Truyens, senior associate attorney - Barnard Incorporated Attorneys

For people married in a community of property at this stage, it doesn't mean anything.

Natasha Truyens, senior associate attorney - Barnard Incorporated Attorneys

It more or less looks like the antenuptial contracts with the accrual might be phased out over the years if Constitutional Court confirms this order.

Natasha Truyens, senior associate attorney - Barnard Incorporated Attorneys

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