Your Ante-Nuptial Contract - Is it No Longer Worth the Paper it is Written On?
To summarise the impact of this article, a recent court decision has found that even if you CHOSE to get married without accrual, the Court could still award your spouse some of your assets - read on to familiarise yourself with this groundbreaking decision.
The Gauteng High Court recently delivered a groundbreaking judgment in the case of Greyling v Minister of Home Affairs and others (“Greyling”), which declared Section 7(3)(a) of the Divorce Act unconstitutional. In short, this section prevented those married after 1984 out of community of property without the application of accrual system from financially benefiting from what they might have contributed to the marriage on divorce.
The reason for this section being promulgated was that prior to 1 November 1984, there were only two marital regimes available in South Africa; in community of property, and out of community of property. In community of property allows for spouses to share in all assets and liabilities, whilst out of community of property entails complete separation of all assets and liabilities.
When the Matrimonial Property Act was implemented in 1984, the concept of “accrual” was introduced – this allowed parties to be married out of community of property but essentially still share in the marital growths of their respective estates on death or divorce.
As a result, and because the legislature felt that parties who had married pre-1984 were at a disadvantage as they had not had the option of choosing the accrual system, Section 7(3)(a) was introduced to the Divorce Act, giving judge’s the discretion to order the equitable redistribution of assets in marriages out of community of property which had been concluded prior to 1984.
The Greyling case challenged this – stating that it was unconstitutional to not also provide this option to marriages concluded after 1984 (even if the parties had specifically elected NOT to get married with the accrual).
Very briefly, the facts of this matter were that Mrs Greyling was the wife of a wealthy farmer, who was married out of community of property, excluding the application of the accrual, in March 1988.
Mrs. Greyling argued that unless her application was successful, neither she nor other spouses in a similar position to her would be entitled to apply for a redistribution order on divorce, irrespective of their particular circumstances and no matter how much this would prejudice them.
Greyling argued further that the effect of Section 7(3) not applying to marriages post 1984 was that many people – most often wives – would be (and are) left in extremely financially constrained circumstances upon divorce, irrespective of how long the marriage lasted and despite them having contributed to the household by inter alia, looking after minor children, or assisting their spouses in accumulating assets over the years.
Greyling also argued that this section discriminated against individuals, particularly on the grounds of gender, and stated that the current legislation “operates to trap predominantly women in harmful and toxic relationships when they lack financial means to survive outside marriage”. In addition to this, an expert report submitted to the court which sketches the context of gender inequality in South Africa, said that many women were still unable to access and realise their rights and “the decision to get married is therefore one that many women make with less autonomy than men, and with less agency to insist on terms that would be advantageous to them”.
Those opposed to the extension of judicial discretion argued that, amongst other things, the proposed amendment would be contrary to the principles of the freedom of contract and that an extension of the proposed judicial discretion would simply encourage litigation and increase costs.
Notwithstanding these arguments, Mrs Greyling won her case and Section 7(3)(a) was found to be unconstitutional with the Judge stating that it was patently unfair that those suffering from economic disadvantage who were married out of community of property without accrual, after 1984, had no recourse to the court to address this injustice. He specifically stated that “only those who go blindfolded through life can deny that gender equality has not yet been achieved in South Africa. The equality issue brought to the fore in this application is not solely attributable to race or gender or religion, but also to economic inequity.”
This judgement, once confirmed by the Constitutional Court, to which it has been referred, will allow spouses married out of community of property without the accrual after 1 November 1984 to claim assets (not in their names) in a divorce based on contributions (financial or otherwise) that they made to the marriage.
This will greatly change the face of divorce law in South Africa and is a very important judgement that couples throughout the country must be aware of.
Written by Megan Harrington-Johnson
We trust that you found this article informative, please email info@hjw.co.za for any assistance regarding your legal queries.
This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at info@hjw.co.za directly for advice applicable to your specific matter.
