Susan Abro, a respected advocate for women and children’s rights, emphasises the crucial role of family lawyers in drafting Ante Nuptial Contracts (ANC) following a ruling by the Constitutional Court. The Constitutional Court has upheld a decision by the High Court of Pretoria, declaring Section 7(3)(a) of the Divorce Act, 70 of 1979, inconsistent with the constitution, thus changing the legal landscape for marital asset redistribution.
The Constitutional Court found the section unconstitutional because it restricted claims for asset redistribution to marriages out of community of property entered into before the Matrimonial Property Act 88 of 1984. The ruling now allows courts the discretionary power to redistribute assets in cases of divorce for marriages excluding accrual, even if there is an ANC which specifically excludes the accrual system as entered into after 1984.
Susan Abro explains, “This judgment highlights the importance of seeking legal advice when drafting an ANC. Many couples are unaware of the potential financial implications of their marital regime choice, particularly in marriages excluding accrual. With this ruling, spouses can now claim redistribution of assets based on their contributions to the marriage, even if there was no initial agreement regarding asset division.”
Most individuals entering marriage know they have three marital regimes to choose from. If one opts out of being married in community of property, signing an ANC is essential. The new ruling provides an avenue for spouses, particularly women who are often economically disadvantaged, to seek equitable asset distribution upon divorce.
“The court’s decision highlights the importance of equitable treatment in marital contracts,” says Abro. “Women are frequently disadvantaged when contracts are presented without fully understanding their implications. This judgment opens the door for those who have contributed significantly, both financially and non-financially, to seek what is rightfully theirs.”
The judgment also implies that courts have the discretion to issue redistribution orders in divorces, especially for couples married out of community of property excluding accrual. This not only allows past cases to be revisited but also potentially enables claims against deceased estates.
Susan Abro stresses, “The moral of the story is clear: having a family lawyer guide you in drafting your antenuptial contract is crucial. It is also essential to ensure that you consider the options and conclude your antenuptial contract with enough time before the wedding and not simply rush into it a few days beforehand. The wedding lasts for a day but the antenuptial contract last for the rest of your married life. Legal expertise ensures that all parties are fully informed and protected, preventing future disputes and ensuring fair treatment.”
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