Page 27 - SA Chamber UK-NOV News letter 2023

MARRIED OUT OF

COMMUNITY OF PROPERTY

IN SOUTH AFRICA?

You could now claim a redistribution of assets when you divorce.

Usually, when couples become married, all their assets are shared. When an ante-

nuptial agreement is put in place, usually to protect the assets of one or both partners
in any potential divorce settlement, or from each other’s creditors, their assets remain
separated, hence the term “out of community of property”. There are two types of “out
of community of property” agreements, either with or without “accrual”. Accrual refers
to the sharing of any appreciation of assets that may take place once the couple are
married.

In this article, Deborah Di Siena, a Senior Partner at Di Siena Attorneys discusses the
recent Constitutional Court ruling on the Divorce Act, which allows individuals married
out of community of property without accrual after November 1984 to now be entitled to
claim a redistribution of assets despite the content of their signed ante-nuptial contract.

Deborah writes:

The Constitutional Court has confirmed that Section 7(3)(a) of the Divorce

Act is inconsistent with the Constitution and is invalid.

Prior to this judgement, our courts did not have the jurisdiction to exercise any discretion

in respect of marriages that were concluded out of community of property with the
exclusion of the accrual system after November 1st, 1984. The effect is that parties
married post 1st November 1984, would not be able to seek a redistribution of assets
even if they contributed in some manner to the increase of the other spouses’ estate.

As such, spouses married before 1984 were treated differently to those married after

1st November 1984. The differentiation did not bear a rational connection to a legitimate
government purpose. Accordingly, Section 9(1) of the Constitution was therefore violated.
The differentiation was on the basis of marital status, thus amounting to discrimination;
and such discrimination was presumptively unfair.

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SA CHAMBER UK NEWSLETTER NOVEMBER 2023