Pending changes on marriages out of Community excluding Accrual

17/05/2022 - By Kelsey Nurse

According to a new High Court ruling the current dispensation of the “redistribution order” has
been called into question regarding its Constitutional validity. The Court found that the current
Section 7(3)(a) of the Divorce Act is inconsistent with the Constitution and therefore found to
be invalid, making reference to the fact that it amounts to unfair discrimination in respect to
marriages out of community of property.
What does Section 7(3)(a) of the Divorce Act say?
(3) A court granting a decree of divorce in respect of a marriage out of community of
(a) entered into before the commencement of the Matrimonial Property Act,
1984, in terms of an antenuptial contract by which community of property,
community of profit and loss and accrual sharing in any form are excluded
May, subject to the provisions of subsection (4), (5) and (6), on application by one of
the parties to that marriage, in the absence of any agreement between them regarding
the division of their assets, order that such assets, or such part of the assets, of the
other party as the court may deem just be transferred to the first-mentioned party.
The Redistribution Order:
Allows for the effected spouse who made contributions to the marriage/estate, in practice was
generally used to assist in matters relating to women who were elderly and may not be able
to be employed after the divorce due to their age or skills etc and furthermore it was also used
for women who previously held a position as a ‘housewife’, to apply to the court for a
redistribution of assets.
The Act sets out two requirements for the court to consider granting this order, namely:
 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.
Marriages out of community of property without the accrual after the commencement of the
Matrimonial Property Act?
Previously, parties who were married out of community after the enactment of the Act, had no
remedy available to them in terms of a fair share in the assets upon divorce from their spouse.
The redistribution of assets order is aimed at restoring the financial imbalance between both
parties, often suffered by the wife. Only the parties who were married out of community
excluding the accrual before the enactment were able to apply for the redistribution order.
How does the Act effect marriages out of community including the accrual?
In accordance with the Matrimonial Property Act of 1984, when a person is married out of
community of property with the accrual a spouse at divorce will share equally in the growth of
the estate of a spouse during the marriage and upon divorce the party with the smaller estate
has a claim over the larger estate, thus allowing each party to exit the marriage on ‘equal’
The new ruling could possibly see the redistribution order taking effect to marriages out of
community excluding the accrual, after the commencement of the Act. But what does that
mean for you and I? Well previously, Marriages after the enactment of the Act could not benefit
from the Redistribution Order. Now, parties could possibly be able to apply for a redistribution
of assets, provided the Constitutional Court finds it just to do so, in terms of Section 7(3)(a)
of the Divorce Act.