ARE YOU AFFECTED BY THE NEW RULING ON DIVISION OF ASSETS UPON DIVORCE?
The judgement of the High Court of Pretoria in GKR v Minister of Home Affairs and Others, Gauteng Division brought about a substantial change for spouses married out of community of property without the accrual system who are contemplating divorce. This order declared section 7(3)(a) of the Divorce Act inconsistent with the Constitution and was referred to the Constitutional Court for confirmation.
When married out of community of property without the accrual system, the assets that you acquired before and during your marriage remain yours to do with as you wish. Spouses married after 1 November 1984 could not claim against each other’s assets upon divorce.
When married out of community of property with the accrual system, spouses with the smaller accrual have an automatic claim for half the difference of the other spouse’s accrual.
The following discussion only relates to spouses married out of community of property without the accrual system.
According to section 7(3)(a), courts only had a discretion to redistribute assets among divorcing spouses who were married in accordance with this marital regime if the couple got married before 1 November 1984 (when the new Matrimonial Property Act came into effect). In other words, courts could not redistribute assets among divorcing spouses who got married after 1 November 1984.
The right to equality in section 9(1) of the Constitution provides that “everyone is equal before the law and has the right to equal protection and benefit of the law”. Section 7(3)(a) was held to be unconstitutional because it discriminates between spouses based on the date that they got married. Spouses married after 1 November 1984 did not have the opportunity to approach courts for a redistribution order based on their respective contributions to the other spouse’s “maintenance and estate growth during the subsistence of the marriage”. After years of marriage, the spouse that contributed to the other’s gain and wealth could be left indigent after a divorce.
The result of this judgement is that spouses can claim compensation for their contributions during the marriage to the extent that courts find it just and equitable. Section 7(5) contains factors that courts will consider in making the redistribution order and includes:
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- – The existing means and obligations of the parties;
- – Donations during the marriage;
- – Any other factors which in the opinion of the court should be considered (bargaining power between spouses, contributions of time, services and expenses, financial positions etc).
Even though the conclusion of an antenuptial contract is governed by the freedom to contract, it is still subject to judicial discretion that allows the court to vary or discard the contract. This judgement allows the court to deviate from the content of the antenuptial contract when making a redistribution order. It is however important to realise that the court will grant this order to redress an unfair financial disparity between the spouses and not to place the spouses into equal financial positions.
If you suspect that this judgement may apply to you, it can be found at: https://media.lawlibrary.org.za/files/judgments/zagpphc/2022/3/2022-zagpphc-3_0.pdf
Article by Suegnet van Rensburg (LLB), Candidate Attorney.
For more information, kindly contact Suegnet on suegnet@rgprok.com or 044 601 9900.
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Disclaimer
Nothing contained in this publication is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This publication is intended for educational and informational purposes only.
