Landmark divorce ruling sees ‘principle of not sharing disappear’

Landmark divorce ruling sees ‘principle of not sharing disappear’

The High Court in Pretoria rules in favour of divorcing of spouses, who are married out of community of property without the accrual agreement, to be compensated for their contribution to the marriage.

Divorce sidechick

The court delivered the historic judgment on Wednesday.


Spouses who were married out of community of property, without an accrual, were given the right to claim assets from their spouse.


The court declared Section 7(3) of the Divorce Act as inconsistent with the constitution and invalid.


Legal expert at firm Adams & Adams, Shani van Niekerk, says the ruling will have a significant impact on marriages.


"Simply put, individuals married out of community of property without the accrual will now be entitled to claim a redistribution of assets despite the content of their signed antenuptial contract. It should, however, be kept in mind that such a redistribution claim is not an automatic entitlement.

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“A spouse instituting a Section 7(3) claim will still need to prove their direct or indirect contributions made towards the estate of the other spouse to be successful. The court hearing such an application will then have to decide upon not only whether such a spouse is entitled to a claim, but also the extent thereof which may differ greatly from matter to matter.


“The relief granted in the application will have far-reaching consequences on the patrimonial consequences of many marriages. The outcome of the application is as such of significant importance to the South African society at large," says Van Niekerk


Although the door is already closed for divorces that have been finalised, Van Niekerk says couples whose divorces are pending can apply for redistribution.


"The principle of not sharing in marriage has now disappeared. Regardless of how couples are married, specifically if couples are married without the accrual and decided not to share, that will not apply so strictly anymore.


“A court will be able to award couples with some assets from the marriage. However, people must remember that the claim is not automatic, you must still prove to a court that you directly or indirectly contributed to the estate of your spouse, mothers who took care of children, that is also a contribution you made.”


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