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TINA HOKWANA | Court has discretion on redistribution order

Divorce court must be satisfied contribution is equitable

Tina Hokwana Legal Practitioner
A court has powers to transfer assets from one spouse to another in divorce,
A court has powers to transfer assets from one spouse to another in divorce,
Image: 123RF

Part 2: In a landmark ruling, the Constitutional Court has confirmed that a court granting a decree of divorce in respect of a marriage out of community of property without accrual concluded after November 1 1984, has the discretion to make a redistribution order in terms of section 7(3) of the Divorce Act.

This is to the effect that any asset, or sum of money, may be transferred from one spouse to another, subject to the provisions of s 7(4), (5) and (6).

It means that a divorce court is granted with a discretion, when dissolving a marriage out of community of property concluded after November 1 1984, to transfer assets or part thereof from the financially stronger spouse to the financially weaker spouse.

Previously, this discretion could only be exercised to marriages entered on or before that time.

A road down memory lane: Greyling v minister of home affairs

The parties were married in March 1988 almost 30 years ago, out of community of property without accrual, a few years after the commencement of the Matrimonial Property Act.

Karen Greyling was 22 years old when she married her husband who was a farmer at the time.

Shortly before their wedding, the husband’s father informed her and her husband that their marriage would be out of community of property without accrual and was subsequently presented with a one-page antenuptial contract by the family’s lawyer and instructed to sign it.

She and her husband lived on a very large farm in a rural area, and she raised their three children, all of whom became high achievers.

She was very involved in their schooling, transported the children on a consistent basis, was a very good wife/mother and was deeply involved in community work.

Her husband, on the other hand, was a very successful farmer who won awards for farming, excelled financially and was able to purchase more farms.

The family lived a luxurious lifestyle, drove luxury cars and enjoyed holidays overseas.

However, because of abuse, the couple separated in 2016.

She then challenged what she believed was an unfair situation in which her pending divorce would ordinarily see her walk away with nothing more than a small inheritance she received from her mother and a possible maintenance claim.

The court was not called upon to determine whether Greyling would be granted a redistribution order in her divorce but to decide whether it was constitutional for spouses married out of community of property without the accrual system after November 1 1984 to be deprived of the relief provided for in s 7(3) of the Divorce Act.

It was argued on behalf of Greyling that under the circumstances, it was unconstitutional that she should be precluded from the relief provided by s 7(3) simply because she was married without accrual after the commencement of the Matrimonial Property Act and the accrual system.

In distinguishing between couples married before and after November 1 1984, s 7(3)(a) prevents spouses in her position from applying for a redistribution order even where such a remedy would be fair and just.

In the judgment, the court took specific issue with the wording, “entered into before the commencement of the Matrimonial Property Act 1984”, stating its phrasing was inconsistent with the Constitution and consequently invalid.

Judge Van Der Schyff found that the differentiation between those married before and after November 1 1984, resulting in the deprivation of s 7(3) relief, did amount to unconstitutional discrimination.

Refusing an application for s 7(3) discretion impairs the applicant’s dignity and limits their recourse.

The ConCourt upheld the high court’s decision of constitutional invalidity and s7(3)(a) of the Divorce Act was deemed inconsistent with the Constitution and invalid for excluding marriages entered into on or after November 1 1984.

What does this mean for marriages concluded out of community of property without accrual?

In practical terms, this means that if you’re married out of community of property without accrual and the marriage ends in a divorce/death, a court can transfer assets or part thereof from the financially stronger spouse to the financially weaker spouse.

The financially weaker spouse who asks for the redistribution order must prove that they contributed during the marriage to the maintenance or the growth of the other spouse’s estate, for example, through the rendering of services and saving expenses.

It is important to take note that a spouse is not automatically entitled to a redistribution order by virtue of the marriage being out of community without accrual. 

The spouse seeking the order must have contributed directly or indirectly to the maintenance or the increase of the other spouse’s estate during the marriage and the court must be satisfied that by reason of such a contribution, it would be equitable and just to make a redistribution order.


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