Is Your Antenuptial Contract Still Valid After the Section 7(3) Judgment?
Yes. A section 7(3) redistribution claim does not simply cancel your antenuptial contract. It also does not convert a marriage out of community of property without accrual into a marriage subject to the accrual system.
The relationship between section 7(3) and your ANC is more limited and more precise. Your antenuptial contract continues to regulate your matrimonial property system. Section 7(3) may, however, allow a spouse to ask the divorce court for a redistribution order if the statutory requirements are established.
The distinction matters. An ANC determines the property system chosen for the marriage. A redistribution claim is a separate form of discretionary relief that may be sought when the marriage ends in divorce.
Section 7(3) and Your ANC: The Direct Answer
Section 7(3) does not erase the parties’ agreement or replace it with a different matrimonial property system. A couple who married out of community of property and excluded accrual remain married on that basis unless their matrimonial property system is changed through a legally recognised process.
The Constitutional Court judgment addressed the former restriction that prevented certain spouses married after 1 November 1984 from seeking redistribution. The constitutional change widened access to the remedy. It did not introduce accrual into every marriage where accrual had been excluded.
This means an antenuptial contract after the judgment continues to matter. The ANC remains the starting point when identifying each spouse’s property rights and obligations. The possibility of a redistribution order arises separately and must be dealt with in the divorce proceedings.
If you are uncertain how the judgment affects your marriage, obtain advice on the wording of your ANC and the financial history of the marriage before adopting a position in divorce negotiations.
What the Constitutional Court Changed
The constitutional issue concerned the date-based limitation in section 7(3)(a) of the Divorce Act. That limitation had distinguished between marriages entered into before and after the commencement of the Matrimonial Property Act on 1 November 1984.
The Constitutional Court judgment in EB v ER and KG v Minister of Home Affairs addressed the constitutional invalidity of that exclusion. Its effect was to remove the date barrier that had prevented affected spouses from applying for redistribution merely because their marriages were concluded after 1 November 1984.
The judgment did not award every affected spouse a share of the other spouse’s estate. It opened access to the statutory remedy. A spouse still has to claim the relief and establish the requirements relevant to the case.
Vermeulen Attorneys has discussed the constitutional development in its article on the Constitutional Court judgment on section 7(3). The present article addresses the narrower question of what that development means for an existing ANC.
What Remains Operative Under Your ANC?
Your ANC remains relevant to the ownership and separation of assets during the marriage. If the contract excludes community of property and the accrual system, the spouses generally retain separate estates.
A potential redistribution claim on divorce does not create a joint estate during the marriage. It also does not give one spouse an immediate ownership interest in assets registered in the other spouse’s name.
The ANC may also contain provisions concerning donations, specific assets or other patrimonial arrangements. Those terms must be considered on their wording and in the context of the applicable law. The outcome cannot be determined from the phrase “without accrual” alone.
The practical position is therefore that the ANC remains legally significant even where one spouse advances a section 7(3) redistribution claim. The court considers the claim within the legal context created by the parties’ chosen matrimonial property system.
Why Redistribution Is Different From Accrual
The accrual system is a statutory matrimonial property system. At dissolution of a marriage subject to accrual, the smaller or non-accruing estate may have a claim calculated by comparing the growth of the spouses’ estates, subject to the applicable exclusions and adjustments.
Section 7(3) works differently. It gives the divorce court a discretion, on application, to order the transfer of assets or part of the assets of one spouse to the other if the statutory requirements are satisfied.
A person who is married without accrual does not acquire an accrual claim merely because section 7(3) may be available. The court is not performing the ordinary accrual calculation. It is considering whether redistribution would be equitable and just in the circumstances described in section 7.
This distinction also means that a redistribution claim on divorce depends on the evidence and the relief pleaded. The court does not simply divide the difference between the two estates according to the accrual formula.
A Redistribution Order Must Still Be Claimed and Established
Section 7(3) provides for relief on application by one of the parties. The claim should therefore be properly raised in the divorce proceedings. It should identify the legal basis for the relief and the material facts relied upon.
Section 7(4) requires the court to be satisfied that the claimant contributed directly or indirectly to the maintenance or increase of the other spouse’s estate during the marriage. The provision recognises contributions through services, the saving of expenses that would otherwise have been incurred, or another form of contribution.
The court must also decide whether an order would be equitable and just. If the court reaches that stage, section 7(5) identifies matters relevant to the assets or portion of assets to be transferred. The assessment remains fact-sensitive.
The available relief cannot be evaluated properly without reliable financial information. Where disclosure is incomplete, the steps required to compel financial disclosure in divorce proceedings may become important.
If a section 7(3) claim may form part of your divorce, obtain legal advice before pleadings are finalised or a settlement is concluded. The wording of the claim and the available evidence may materially affect how the issue is addressed.
The ANC Still Matters When the Court Considers Relief
The fact that the ANC remains valid does not make a redistribution order impossible. Equally, access to section 7(3) does not make the ANC irrelevant.
The contract records the matrimonial property system selected by the parties. It may identify donations or other patrimonial arrangements that require consideration. Section 7(5) expressly allows the court to consider a donation made by one party to the other during the marriage or a donation owing and enforceable under the ANC.
The court’s power is therefore exercised against the background of the ANC, the separate estates and the evidence concerning the parties’ financial relationship. The contract and the redistribution remedy operate in the same legal dispute for different purposes.
Common Misconceptions About Section 7(3) and Your ANC
The ANC has been cancelled
No. The constitutional development did not cancel every ANC that excludes accrual. An antenuptial contract after the judgment continues to regulate the matrimonial property system unless it has been changed or set aside through a recognised legal process.
The marriage is now subject to accrual
No. A spouse who is married without accrual does not become married with accrual because a redistribution remedy may be available.
Redistribution means an equal division
No equal division follows as a matter of course. A section 7(3) redistribution claim requires a court to consider the statutory requirements, the evidence and what would be equitable and just.
A claim can be raised after the divorce is complete
Section 7(3) concerns an order made by the court granting the decree of divorce. The relief should be addressed in the divorce proceedings. Advice should be obtained before a final settlement is signed or the divorce is granted.
Frequently Asked Questions
Does section 7(3) and your ANC mean the contract no longer applies?
No. The ANC continues to regulate the matrimonial property system. Section 7(3) may provide a separate redistribution remedy at divorce if the claim is properly advanced and the statutory requirements are established.
Can I claim accrual if my ANC excludes it?
A redistribution claim is not an accrual claim. If the ANC excludes accrual, the availability of section 7(3) does not itself introduce the accrual system into the marriage.
Does the court have to grant redistribution?
No. The court exercises a discretion after considering the statutory requirements and the evidence. The result depends on the facts of the marriage and the claim placed before the court.
What must I prove for a section 7(3) redistribution claim?
The claimant must place evidence before the court concerning a direct or indirect contribution to the maintenance or increase of the other spouse’s estate. The court must also be satisfied that an order would be equitable and just.
Can household and caregiving contributions be relevant?
Section 7(4) is not limited to direct financial payments. Services rendered and expenses saved may be relevant. Their effect on the other spouse’s estate must still be established on the evidence.
What should I do if I am married without accrual and considering divorce?
Gather the ANC, available financial records and information concerning the parties’ contributions during the marriage. Obtain advice before agreeing to the division of assets or finalising the divorce pleadings.
Obtain Advice on the Effect of Your ANC
The correct analysis starts with the wording of the antenuptial contract, the applicable matrimonial property system and the financial history of the marriage. The existence of a possible redistribution remedy does not answer what order, if any, may be appropriate in a particular case.
For a broader explanation of eligibility, contribution and the court’s discretion, read Vermeulen Attorneys’ guide to a section 7(3) redistribution claim.
Vermeulen Attorneys assists clients with matrimonial property disputes and redistribution claims in divorce proceedings. Obtain advice before concluding a settlement or finalising pleadings if section 7(3) may affect your matter.
Contact Vermeulen Attorneys for more information.