New Legal Right: Redistribution of Assets for Marriages Out of Community of Property
In a landmark judgment handed down on Tuesday, the Constitutional Court has upheld a previous ruling from the High Court in Pretoria, declaring Section 7(3) of the Divorce Act to be unconstitutional. This judgment carries significant implications for marriages concluded out of the community of property, affecting the distribution of assets upon divorce and death.
In simple terms, individuals who entered into marriages without the accrual system while married out of the community of property will now have the right to request a redistribution of assets, regardless of the terms outlined in their antenuptial contract.
The crux of the matter revolves around Section 7(3) of the Divorce Act, which the Constitutional Court has now deemed as creating an unconstitutional differentiation. Specifically, it distinguishes between marriages that are terminated by divorce and those terminated by death for individuals who were married out of the community of property. Historically, Section 7(3) of the Divorce Act dictated that in cases where spouses married out of the community of property sought divorce, the court was granted the authority to make an equitable order that could, in certain instances, leave stay-at-home wives with nothing.
However, it is crucial to note that this provision only applied to marriages entered into before 1 November 1984. After this date, marriages were automatically subject to the accrual system, meaning that individuals could not make claims from their spouse's estate unless an antenuptial contract explicitly excluded this right. For those married before 1984, there existed a distinct benefit in the form of a special redistribution agreement upon divorce. This arrangement aimed to address financial disparities and contributions within the marriage, ensuring a fair and equitable distribution of assets.
However, individuals who married after 1984 were not entitled to this benefit, regardless of their financial or non-financial contributions to the marriage. The Constitutional Court's judgment thus underscores a significant shift in the legal landscape. It marks the end of Section 7(3)'s discriminatory impact, ensuring a more equitable approach to the distribution of assets for those who marry out of the community of property, irrespective of their marriage's date. This judgment carries wide-reaching implications for divorce proceedings and underscores the need for individuals, particularly those married after 1984, to review their legal arrangements and consider estate planning measures in light of this legal development.
For personalized legal advice or assistance in navigating the complexities arising from this judgment, we encourage you to reach out to our law firm. We are here to guide you through the legal intricacies and help you make informed decisions to protect your interests in this evolving legal landscape. Email: info@mjmattorneys.co.za or Call 015 023 0013/072 772 3401