Victory for women married out of community of property

THE court has now paved the way for divorcing spouses married out of community of property and without the accrual system to be financially compensated for their contribution to the marriage.

In a groundbreaking judgment, the Gauteng High Court, Pretoria, this week declared section 7(3)(a) of Divorce Act 70 of 1979 unconstitutional in that it did not allow for a court to make a “redistribution order”.

Shani van Niekerk of Adams & Adams Attorneys, who appeared for the Pretoria Attorneys Association – which entered the proceedings as a friend of the court – said this was an historic judgment, especially for women who earlier stood to receive nothing if they were married out of community of property.

Van Niekerk explained that the practical effect of the judgment was that anyone divorcing and who felt that they had contributed to a marriage – whether directly or indirectly – could now apply for a fair share of the assets accumulated by the spouses during the marriage.

According to Van Niekerk, this extends especially to women who have taken care of the children and household during the marriage, without working and earning an income.

The discretion to award a claim, however, still lies with the court and each case is based on its merits.

Judge Elmarie van der Schyff declared that this section of the Divorce Act was inconsistent with the Constitution and invalid to the extent that the provision limited some spouses to be compensated from the assets that both parties had worked towards (directly or indirectly) during the marriage.

Van Niekerk, however, stressed that in terms of the court order, such a redistribution of assets was not an automatic entitlement.

In terms of the court order, a spouse instituting a 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 whether the claiming spouse is entitled to anything. The court will also have to decide on the extent of the claim, which may differ from matter to matter.”

Van Niekerk added that the order would have far-reaching consequences on the patrimonial consequences of many marriages and was expected to open the floodgates for many spouses to get their fair share of what they put into the marriage.

The order, however, does not have any effect on spouses who are already divorced.

As the law stood before this judgment, the court had no power to exercise any discretion to award assets to a spouse where marriages were concluded out of community of property, with the exclusion of the accrual system after November 1, 1984.

The estranged wife of a wealthy farmer turned to the court to have the section of the Divorce Act declared unconstitutional.

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 (even through means such as looking after the household), 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 were 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 accumulated.