Hi there and thank you for your answer,
Since you're married by ANC (out of community of property) you need to be aware that you each have separate estates. Assets which your husband has worked for during his life belong to him, and assets which you worked for belong to you. On dissolution of the marriage, each person walks away with their own assets.
If you had gotten married in the past 30 years, you would have had the option of being married out of community of property but with the inclusion of the accrual system. The accrual system is a way that the legislature has attempted to "fix" situations like yours where you would walk away with nothing. I, for example, am married out of community of property but with the inclusion of the accrual system. There are a number of articles online about the accrual system, but I don't think that it applies to you since you were (by my calculations) married prior to 1984.
Marriages out of community of property concluded before 1 November 1984 are based on the principle that each spouse has his/her own separate estate. Prior to 1984, spouses either entered into in community of property or out of community of property marriages. The accrual system only came into operation on 1 November 1984.
The consequences of divorce when married out of community of property before 1 November 1984
A ‘redistribution of assets’ section was introduced in the Divorce Act to assist spouses who married out of community of property prior to the enactment of the Matrimonial Property Act 88 of 1984. Although this section may only apply to a relatively small number of marriages, it is important to a particularly vulnerable class of women, namely older women who are less likely to find employment upon divorce and who do not qualify for either child-support grants (as their children would be older) or state pensions.
This reforming and remedial measure applies to marriages out of community of property entered into between whites, coloureds and Asians before 1 November 1984, and to black people married out of community of property in terms of the old Black Administration Act 38 of 1927, prior to the commencement of the Marriage and Matrimonial Property Law Amendment Act 3 of 1988. It was introduced to redress the financial imbalance invariably suffered by the wife on termination of the marriage by divorce.
In the absence of a divorce settlement agreement between the spouses, they retain their own separate estates and there is no sharing of assets on divorce, unless the court granting the decree of divorce orders a redistribution of assets between the parties in terms of Section 7(3) of the Divorce Act. A pension interest forms part of the spouse’s estate and will form part of the assets if redistribution is ordered. The parties may also agree to share the pension interest.
The court will not grant a redistribution order unless it is satisfied that it is equitable and just to do so. Apart from contributions made by the party concerned, the court will also take into account, among other things, the existing means and obligations of both parties. The Act sets out two requirements that must be met if the court is to consider granting a redistribution order:
- the spouse seeking the order must have contributed directly or indirectly to the maintenance or the increase of the other spouse’s estate during the marriage; and
- the court must be satisfied that by reason of such a contribution, it would be equitable and just to make a redistribution order.
Although the law allows either spouse to apply for a redistribution order, in practice this section has largely been used by women. In past cases, the courts have
- specifically considered the historical gender imbalance that made it more difficult for women to access the labour market;
- acknowledged that wives’ household duties should not be viewed as of less value than the employment duties of the husband;
- noted that the Act is sufficiently worded to cover any contribution a spouse makes, including the ordinary duties of a wife; and
- found that it is not always necessary for an applicant to show which assets he/she contributed to, but merely to prove that a contribution was made to the other spouse’s estate.
The court is thus enjoined to apply discretion, justice and equity in coming to the assistance of the financially disadvantaged spouse.
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