NEW LANDMARK JUDGEMENT AFFECTS ASSET DIVISION IN A DIVORCE

ARE YOU MARRIED OUT OF COMMUNITY OF PROPERTY WITHOUT THE ACCRUAL AND ARE CONTEMPLATING A DIVORCE? THIS NEW LANDMARK JUDGMENT WILL HAVE AN EFFECT ON HOW YOUR ASSETS MAY BE DIVIDED.

 

The High Court of Pretoria in Gauteng Division recently delivered a landmark judgement in the case of GKR v Minister of Home Affairs and Others, which has substantial implications for spouses who are married out of community of property without the accrual system and are considering divorce. This judgement declared section 7(3)(a) of the Divorce Act to be inconsistent with the Constitution and referred the matter to the Constitutional Court for confirmation.

 

Before this judgement, spouses who were married out of community of property without the accrual system had limited options for division of property upon divorce. Section 7(3)(a) of the Divorce Act stated that such spouses were entitled to only a portion of their respective estates at the time of divorce, without taking into account any changes in the value of their estates during the course of the marriage. This meant that spouses who had contributed significantly to the growth of the other spouse’s estate during the marriage were left without any claim to that growth.

 

The High Court of Pretoria’s judgement in GKR v Minister of Home Affairs and Others has changed this. The Court declared that section 7(3)(a) of the Divorce Act was inconsistent with the Constitution, as it violated the right to equality and the right to property. The Court held that spouses who were married out of community of property without the accrual system should be entitled to an equal share of any increase in the value of their respective estates during the marriage, regardless of whether the increase was due to their own efforts or the efforts of their spouse.

 

This judgement has been referred to the Constitutional Court for confirmation and, if confirmed, will have far-reaching implications for spouses who are married out of community of property without the accrual system. This judgement will ensure that spouses who have contributed significantly to the growth of their spouse’s estate during the marriage are no longer left without any claim to that growth upon divorce. This will provide a more equitable division of property upon divorce and give spouses greater certainty and peace of mind when entering into a marriage out of community of property without the accrual system.

 

In conclusion, the High Court of Pretoria’s judgement in GKR v Minister of Home Affairs and Others has brought about a substantial change for spouses who are married out of community of property without the accrual system who are contemplating divorce. If confirmed by the Constitutional Court, this judgement will provide a more equitable division of property upon divorce and will give spouses greater certainty and peace of mind when entering into a marriage out of community of property without the accrual system.

 

To know what the result is from the Constitutional Court, get advice regarding marriage regimes or acquire legal support with a divorce, contact Burden Swart & Botha Attorneys as we specialize in Family Law.