There are three marriage regimes in South Africa, which provide guidance on how assets and liabilities are shared in between the couple, and how they might be shared in the case of a divorce.
These regimes are as follows:
1. In community of property: A marriage agreement where both parties share in the assets and liabilities of the marriage.
2. Out of community of property with accrual: In this marriage, both parties can stipulate assets that are to be excluded and declare their asset values at the start of the marriage. Upon divorce, they will share in the accrued estate only.
3. Out of the community of property without accrual system in place: This marriage regime provides that each party has their own estates, and they do not share in the profit or loss at the end of the marriage. This is a favoured regime as it provided asset protection to people.
However, a recent decision of the Pretoria High Court on 11 May 2022 declared that a particular section of the Divorce Act was unconstitutional, resulting in significant changes for couples.
The Judge deemed Section 7(3)(a) of the Divorce Act unconstitutional, explaining that this section is unfair to women as they could not benefit from marriage out of community of property without including the accrual system.
The matter will now be referred to the Constitutional Court for confirmation.
What this means for couples
Durban-based Attorney Atisha Ghela from Ghela and Associates tells us this “decision has far-reaching consequences for both patriarchal managed homes and matriarchal managed homes.”
She says that in in some instances women felt trapped in dysfunctional, toxic relationships due to the regime they married in, as they had no financial redress if the marriage ended.
On the other hand, many women who head up homes financially would now find that they will have to share in their estates with their non-supportive husbands, Ghela says.
“It appears that the decision will provide an equal playing field for females, especially those disadvantaged due to patriarchal mindsets within their communities,” says the divorce and family law attorney.
“Some women are married off young and have to bring their education and career to a standstill due to the marriage and household responsibilities. This decision will provide more equality in women’s roles in the household and add value to that non-financial contribution,” adds Ghela.
When does this come into effect?
She says that the new ruling will cause any future claim by a spouse not to be automatic until the Constitutional Court confirms it, and each case will be weighed on its own merits and facts.
“It is critical to note that this matter may not apply retrospectively to divorces that have already been finalised. It will apply to matters still to be adjudicated. The parties involved must await the outcome from the Constitutional Court,” she says.
She added that this new ruling “brings an essential factor to the forefront: an open discussion between couples when they choose to get married and getting the right advice from an Estate expert first.”
Ghela suggests that when the wedding confetti has settled, the couple must embrace their new lives with clarity on how they intend to grow or share their assets.