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What’s yours is yours and what’s mine is mine………..Right? Wrong!
In a recent judgment, the Pretoria High Court ruled that a section of the Divorce Act is inconsistent with the Constitution and has asked the Constitutional Court to confirm this judgment.
If the Constitutional Court confirms the judgment, it will have important implications on how assets are redistributed when couples who are married out of community of property without accrual get divorced. Such couples will be able to ask the Court for a redistribution of the assets. This will benefit and create a balance for marriages where one spouse is left with nothing although he/she contributed substantially to the marriage.
However, this is not a right and the spouse is not automatically entitled to the redistribution of assets. The spouse claiming the redistribution will have to prove that he/she contributed to the other spouse’s estate and the Court will have to decide whether he/she is entitled to some of the other spouse’s assets.
Even though there is the possibility of a redistribution on divorce, it is important to sign an Antenuptial Contract. It’s a business decision. While the spouses are married, the assets of one spouse are protected from the creditors of the other spouse. If no contract is signed before the marriage, the marriage will be IN Community of Property and there will be one single joint estate with the spouses sharing all assets as well as all liabilities whether accrued from before the marriage or during the marriage.
Article by: G. AMORE
For further information or assistance with Antenuptial Contracts, please contact Myers Attorneys on 011 346 2422 or email@example.com
You can also visit our website www.myersattorneys.co.za
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