Divorces can be especially unfair where spouses are married out of community of property with an ante-nuptial contract (ANC) excluding accrual. Many people believe this leaves the financially weaker spouse with no claim to assets, even after decades of contribution to the marriage.
“Lerato” was married for 30 years under an ANC without accrual. Throughout the marriage, she devoted herself to raising their children and running the household while her husband built a substantial estate of properties, investments, and retirement funds. When the marriage ended due to his infidelity, she was told by her previous attorneys that she had “no claim” and would leave with nothing.
When Lerato turned to our team, we advised her that she could apply for a Section 7(3) redistribution order. This remedy allows courts, in appropriate cases, to redistribute assets to reflect a spouse’s non-financial contributions. We amended her divorce papers and argued that her decades as a homemaker and mother enabled the growth of her husband’s estate.
The court agreed and ordered:
This outcome secured Lerato’s financial stability, acknowledged her lifelong contributions, and set a strong precedent for fairness in ANC marriages without accrual.
This case illustrates that South African courts are increasingly guided by equity and fairness, even in situations where traditional contract terms appear to exclude accrual. With the upcoming General Laws (Family Matters) Amendment Bill, 2025, these principles are set to be entrenched further, providing more protection for spouses in similar situations.
