Author : Millers Attorneys
For Better or For Worse
Up until 01 November 1984, if you were married out of community of property, it meant that on divorce, whatever was yours was yours and his was his – irrespective what each one contributed to the marriage, whether financially or otherwise. It often prejudiced women in that traditionally, at least at that stage still, women would stay at home and raise the kids, whilst hubby went off to work and built himself a nice nest egg. Then he would want a divorce and leave his wife stranded without a penny, or with very little whilst he trotted off with almost everything. The legislature stepped in to introduce Section 7(3) of the Divorce Act which provides that the Court may, despite the fact that the parties were married out of community of property, in its discretion make a “redistribution award”, i.e. it could ignore the antenuptual agreement and order an asset redistribution as “appears to be equitable and just”.
In the matter of Bezuidenhout v Bezuidenhout, where the wife wanted to apply English law and ask that everything simply gets split down the middle, the Supreme Court of Appeal once again emphasised that a court has an “unfettered discretion”, and that it may take any direct or indirect contribution to the maintenance or increase of the estate of the other party, by the rendering of services or the saving of expenses in any manner or form, into account, and that there is no need to quantify the weight to be accorded to the relevant factors in determining the quantum of a redistribution order. Each case depends on its own circumstances and must be determined accordingly. There is no place in South African law to apply the English law in this manner. One thing it also made clear was that there is an infinite variety of circumstances under which s 7(3) fails to be applied, and the traditional role of housewife, mother and homemaker should not be undervalued because it is not measurable in terms of money. In other words, if you were married prior to 01 November 1984, out of community of property, but intend to divorce, don’t rely on your antenuptual agreement too much!