When spouses-to-be enter into antenuptial agreements and regulate how they see the future of their patrimonial affairs, their expectation is that the agreement is binding. However, because of the unique, very personal nature of a marriage, our laws grant limited discretion to our courts to adapt certain of the agreed outcomes, in very specific circumstances.
One example is found section 7(3) of the Divorce Act. It states that a court that is asked to grant a decree of divorce in a marriage out of community of property excluding the accrual system, has a discretion to make a redistribution order. In other words, that assets of one spouse is transferred to the other despite the agreement. This discretion only exists if the marriage (out of community of property and with the exclusion of the accrual system) was concluded before 1 November 1984.
In a challenge to this provision recently, the Pretoria High Court held that this provision was unconstitutional because it treated persons in these marriages differently, depending on the date of the marriage only, for no good reason.
This outcome will constitute a landmark change to divorce matters, only once and if it is confirmed by the Constitutional Court. We will report on this development as soon as this has been considered by that court and one should remain mindful that it takes some time for decisions of this nature to come before the constitutional court. Until so confirmed, the decision is not binding.
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