Author: ADAMS & ADAMS
17 March 2022
Court asked to change divorce law to allow spouses married out of community of property right to claim assets
The Gauteng High Court, Pretoria, has reserved judgment in an application that could pave the way for divorcing spouses, married out of community of property and without the accrual system, to be compensated for what they consider to be their financial contribution to the marriage.
The estranged wife of a wealthy farmer turned to the court to have section 7(3)(a) of Divorce Act 70 of 1979 declared unconstitutional, as it did not allow for a court to make a “redistribution order”.
The wife, who may not be named as divorce proceedings are pending, is, in practical terms, seeking to have the law amended so that a court may order that any asset – or any sum of money – be transferred from one spouse to the other following a divorce.
But, as the law stands, the court has no power to exercise any discretion where marriages were concluded out of community of property with the exclusion of the accrual system after November 1, 1984.
It was argued on behalf of the wife that the key considerations were whether the spouse applying for redistribution contributed to the growth of the other spouse’s estate during the marriage, and the extent of that contribution.
According to the argument advanced on her behalf, many women were forced into signing a prenuptial agreement to get married out of community of property, excluding the accrual system, as she was forced to do in 1988.
This meant, she said, that many women are left out in the cold after a divorce, irrespective of whether they had contributed to the household, raised the children and contributed to the assets their husbands have accumulated over the years.
It was argued on her behalf that unless her challenge of the Divorce Act is successful, neither she nor any other spouse in her position are entitled to apply for a redistribution order, as the divorce courts’ hands would be tied.
Her advocate argued that a redistribution of assets order differed from a maintenance order, as the latter was simply to tide the spouse – usually the woman – over financially, and not what she actually deserved in terms of her contribution to the household.
It was argued that the wife, in this case, had been young, naïve and in love with her husband when she signed the ante-nuptial contract.
She was pressured to sign the contract by his family, especially his father, who said at the time that no-one would marry into his family except by way of an ante-nuptial contract, such as the one she was forced to sign.
She said that for almost 30 years of the marriage, she significantly contributed to the maintenance and expansion of her husband’s estate and assets, while looking after the children and working on the farm.
It is said that her husband has amassed a great fortune, so much so that he has been profiled prominently in publications, such as a recent book titled, Fortunes – The Rise and Rise of Afrikaner Tycoons.
He is also described as a “megafarmer ultrapreneur”.
Her advocate said the court was not being asked to determine how much money she should get, if any, from her husband. The application was only to pave the way forward for her, and others in her situation, to be able to ask the court in future to consider whether they should get a portion of their husband’s estates when divorcing.
It was argued on her behalf that the law still enforced a man’s headship of the family, which placed women in her situation in a weak bargaining position.
However, Shani van Niekerk of Adams & Adams Attorneys said the order asked for would, if granted, have a far-reaching effect on the patrimonial consequences of many marriages.
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