Question posted in the Divorce Law category relating to Western Cape
Hi There.We recently got married out of community without accrual and set up our prenup agreement.On 11 May the high court declared that Section 7(3)(a) of the Divorce Act is inconsistent with the Constitution and therefore invalid. Here is a reference to a news article explaining the matter:https://businesstech.co.za/.../new-court-ruling-has.../How/when will this have an impact on our prenuptial agreement, if at all?
Message from the Lawyer
Hi there and thank you for your question,
I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow-up questions in order to clarify your question. If you have a new question, you must please open a new thread.
Yes, you are 100% correct in that this High Court decision will most certainly impact you guys if you ever got divorced. Well done on picking that up.
As per the article, the practical implication of the judgment is that any person who enters into an ANC without accrual can now ask a court (during the divorce process) for a redistribution of assets – overriding the content of their signed ANC – if the court deems it appropriate and just. This must however be confirmed by the Constitutional Court though ... so watch this space.
HOWEVER, this redistribution would only be in respect of assets acquired during the marriage, and also in respect of the growth of the parties estates.
It would not apply to existing assets which the parties own prior to entering into marriage.
In effect, if the Con Court agrees with the High Court, the result is an almost forced situation where you can no longer get married out of community of property without the accrual ... rather you can now (practically) only get married out of community of property with the accrual or in community of property.
You must realise that this is not something for the taking ... there are factors which the court will look at and take into account in deciding whether to made a redistribution award.
The starting point however is that your prenup (ANC) does continue to apply, and you can't throw it away. It continues providing you protection, especially in circumstances where one of you is sequestrated and creditors try attach marriage assets. The ANC protects those assets from your spouses creditors. So the ANC doesn't only operate on divorce ... there are other reasons for it as well.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow-up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted to be answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Message from the client
If we get divorced before the Con court agreed with the high court, can my spouse still ask for a redistribution of assets?
Also, if you had to guess, how long do you think it will take the concourt to reach a conclusion?
And lastly, where can we track the status of the concourt proceedings in this case?
Message from the Lawyer
If we get divorced before the Con court agreed with the high court, can my spouse still ask for a redistribution of assets? --> No, because the Con Court needs to pronounce on the unconstitutionality of the section of the Act.
Also, if you had to guess, how long do you think it will take the concourt to reach a conclusion? --> Absolutely no idea. I can't guess.
And lastly, where can we track the status of the concourt proceedings in this case? --> I can only refer you to the SCA website or the Con Court website, or to articles online.