Divorced? South African courts may soon override prenups

Bongani Bingwa is joined by Alison Botha of the Department of Justice and Correctional Services and Ceri von Ludwig, an attorney specialising in Family Law.

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A groundbreaking new bill is on the table and it could allow courts to override antenuptial contracts to ensure a fairer split of assets after divorce or death.

For couples married out of community of property without accrual, this could be life-changing.

Minister Mmamoloko Kubayi says the General Laws (Family Matters) Amendment Bill is about justice, and closing gaps that have long left women, in particular, out in the cold.

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"The purpose is to expand the ambit of the redistribution remedy."

- Alison Botha, Department of Justice and Correctional Services

The redistribution remedy allows the court to exercise its discretion and award certain assets of one spouse to the other spouse.

That discretion can be exercised in terms of what is set out in the Divorce Act.

The Divorce Act allows the court to do this if it finds that it is 'just and equitable' to do so.

"If that spouse contributed directly or indirectly to the maintenance or increase of the estate of the other party during the marriage, either by rendering services or saving expenses which would otherwise have been incurred."

- Alison Botha, Department of Justice and Correctional Services

Botha says it creates a remedy where a remedy didn't exist before, for certain categories of marriages.

"This remedy existed for marriages which were entered into before the Matrimony of Property Act, so before antinuptial contracts existed."

- Alison Botha, Department of Justice and Correctional Services

Botha explains that it now applies to marriages entered into after 1984; those that may have been entered into out of community of property, without accrual and marriages dissolved by death.

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Von Ludwig says the new laws will protect those who may have been disempowered at the start of the marriage.

"Many people come to the anti-nuptial contract without an equality of contractual power."

- Ceri von Ludwig, Family Law attorney

Ludwig warns that the remedy isn't easily available.

"You can't just go along and say, I've changed my mind, I want a share... It's a matter of applying to the court for a redistribution of the assets of the wealthier spouse to the poorer spouse."

- Ceri von Ludwig, Family Law attorney

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