New landmark court ruling allows a court to ignore an Ante­Nuptial Contract without Accrual

A landmark ruling delivered in the Gauteng High Court on 11 May 2022 could have far reaching consequences for couples who got married out of community of property after 1 November 1984. In this matter, an application was made in the high court to declare a particular provision of the Divorce Act namely Section 7(3) to be inconsistent with the constitution and that it amounted to unfair discrimination.

There are 3 types of marital regimes a couple can choose to get married in South Africa:

(i) in community of property marriage,

(ii) out of community of property without the accrual system, and

(iii) out of community of property with the accrual system.

Before choosing which marital system is more suitable it's best to get the advice of a specialist attorney who is well versed in such matters, as each system has its pros and cons. Section 7 (3) of the Divorce Act deals with the division of the assets of a marriage out of community of property and it grants the court a discretion to order a redistribution of the assets of a divorcing couple.

This, despite the fact that the couple were married out of community of property and the court could make an order to the effect that any asset, or sum of money may be transferred from one spouse to another, provided the marriage was entered into before 1 November 1984.

Coming back to the court ruling which has caused ripples within the legal industry, Mrs. G got married in 1988 out of community of property without the accrual system. She wanted the court to exercise its discretion and make a redistribution of the assets but because of the date of her marriage, the court could not do so.

The court said that the main disadvantage of a marriage out of community of property without the accrual, was that no matter how long the marriage has endured and how much the economically disadvantaged party has contributed to the other party's economic and financial success, the economically disadvantaged party does not as a right share in the latter's gains".

Women are still predominantly found in the position of the economically disadvantaged party. Mrs. G said should she not be successful in her application, then neither she nor any other spouse in a similar position would be allowed to apply for a redistribution order on divorce, irrespective of their particular circumstances and no matter how stark the injustices they faced may be.

The court found that section 7(3)(a) arbitrarily and irrationally differentiates between people married before and after 1 November 1984 and ruled in her favour. The implication of the court's decision is that any person who enters into an Ante-Nuptial Contract without accrual after 1 November 1984, could now approach the court for a redistribution of assets of the parties. It must be cautioned that this would not amount to an automatic right to a redistribution of the assets. The court will only exercise its discretion if it's found to be just and equitable to do so. The court referred its ruling on the unconstitutionality of Section 7(3) to the Constitutional Court for confirmation.

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