Constitutional Court Shakes Up Ante-Nuptial Contracts

Thousands of South Africans who are married out of community of property may soon feel the impact of two landmark Constitutional Court judgments that could significantly reshape the law governing marital property rights.

The Constitutional Court has declared portions of the Divorce Act unconstitutional and invalid, paving the way for greater protection of spouses who may have been unfairly disadvantaged during a marriage.

To understand the significance of these rulings, it is important to understand the different marital regimes available in South Africa.

When couples marry, they generally have three choices:

In Community of Property – where all assets and liabilities form part of one joint estate shared equally by both spouses.

Out of Community of Property Without Accrual – where each spouse retains a completely separate estate and there is no sharing of assets accumulated during the marriage.

Out of Community of Property With Accrual – where spouses keep separate estates during the marriage, but share in the growth of each other’s estates when the marriage ends through death or divorce.

The controversy centred on section 7(3) of the Divorce Act.

Historically, courts had the power to order a redistribution of assets between spouses where fairness demanded it. However, this protection was only available to couples married out of community of property before 1 November 1984, the date on which the Matrimonial Property Act came into operation.

This meant that spouses married after 1 November 1984 could not seek a redistribution order, even where one spouse had made substantial contributions to the marriage while the other accumulated significant wealth.

The Constitutional Court found this distinction to be unfair, discriminatory, and inconsistent with the Constitution. The Court ruled that limiting redistribution orders to pre-1984 marriages unjustifiably excluded spouses married after the commencement of the Matrimonial Property Act.

In a second judgment, the Constitutional Court addressed another glaring gap in the law. Section 7(3) relief was only available when spouses divorced. It did not apply when a marriage ended because one spouse died.

The Court found this exclusion to be equally unconstitutional, holding that surviving spouses should not be deprived of potential redistribution claims simply because the marriage ended through death rather than divorce.

While the Court declared both provisions invalid, the declaration has been suspended for 24 months to give Parliament an opportunity to amend the legislation.

The judgments will not affect matters that have already been finalised by the courts. However, they will have important implications for current and future disputes involving redistribution claims until Parliament formally corrects the legislation.

What Does This Mean for You?

These decisions are a reminder that choosing a marital regime is one of the most important legal and financial decisions a couple can make.

Before signing an ante-nuptial contract, ensure that you fully understand the consequences of your choice. What may seem like a simple document before marriage can have profound implications for your financial security many years later.

Obtaining sound legal advice before saying “I do” could save you from costly disputes and unexpected consequences in the future.

Know Your Rights.

The Law Desk of Fawzia Khan & Associates
Giving YOU the Power of Attorney.

For legal assistance, contact us on 031 502 5670 or email info@thelawdesk.co.za.