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Divorcees win landmark case in Constitutional Court

Tauriq Moosa Legal Reporter

The Constitutional Court has ordered parliament to amend the Divorce Act to give more spouses a chance to claim a share of the assets of a former partner after a split.

The ruling, which came after two women challenged the law and won in the high court, expands the scope of the legal remedy that was previously limited by date and type of marriage. Some have expressed concern that the ruling creates uncertainty for clients who want to protect their assets.

The remedy, known as a redistribution order, allows a divorce court to transfer some assets from one spouse to another if they were married out of community of property, meaning they kept assets separate. Marrying in community of property means spouses coown property.

The Divorce Act has always allowed a divorce court to order a “richer” spouse married out of community of property to hand over assets to the other spouse. With Tuesday’s ruling, more the pool of spouses who can make such a request has widened.

The apex court said the remedy is meant to protect spouses who got married before November 1984, when the new law gave them more options and protections to regulate their marital properties. The court said the remedy should apply even if the divorce is not finalised, which was not clear in the current law.

It gave MPs two years to fix the defects in the Divorce Act, and order the government to pay the costs of the two women.

One of them, identified as Mrs B, married Mr B out of community of property in 1983 and filed for divorce in 2015. She filed for a redistribution order a year later, but Mr B died before the case could be concluded. The executor of Mr B’s estate argued in court that she had no claim to his assets because he was dead.

The other woman, identified as Mrs G, married Mr G out of community property in 1988 and filed for divorce in 2017. She also asked for a redistribution order but the law did not allow it because her marriage took place after the cutoff date.

Writing for a unanimous court, judge Owen Rogers agreed with both women, saying denying them access was unlawful and unconstitutional while dismissing claims that the ruling would create uncertainty. “The remedy … can only be granted if the court deems it equitable and just,” he wrote.

Shani van Niekerk, a senior associate at Adams & Adams, which assisted the court with information “and expertise, said the remedy is not an automatic entitlement”.

She said the judgment creates some uncertainty for clients who want to keep their assets separate from their spouses and noted a lot of clients have asked if their assets are safe and, now, “I cannot give them an answer”. She said this will probably lead to “exciting” litigation in future.





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