Married Out of Community of Property? You May Still Be Entitled to a Share

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Family Law

Married Out of Community of Property? You May Still Be Entitled to a Share

by | May 26, 2026

“Justice cannot be for one side alone, but must be for both.” (Eleanor Roosevelt)

Under the antenuptial contract alone, she would have had no claim on his estate. The court found otherwise. A woman who spent three decades running a home, raising her husband’s children, supporting his career, and making financial contributions to joint expenses received 40% of his estate. The parties were married out of community of property without the accrual system. The antenuptial contract said their estates were separate. Contribution told a different story.

What changed and why it matters

Until recently, redistribution orders under section 7(3) of the Divorce Act were only available to couples married before 1 November 1984. Couples who married after that date and excluded the accrual system in their antenuptial contract had no access to this remedy.

The Constitutional Court changed that, declaring the limitation constitutionally invalid. It found the limitation to be unconstitutional, constituting unfair discrimination that disproportionately affected women, who more often sacrifice financial independence for the benefit of the marriage. The redistribution remedy is now available to couples married out of community of property without accrual, regardless of when they married.

What the law requires

A redistribution order is not automatic. The court must be satisfied that the claimant contributed directly or indirectly to the maintenance or increase of the other spouse’s estate during the marriage. The court then considers the means and obligations of each party, any donations made during the marriage, and any other relevant circumstances, before determining what transfer is just and equitable.

Ordinary spousal duties can be enough. A claimant does not need to show contributions beyond what a spouse would ordinarily do. Managing a household, caring for children, supporting a partner’s pursuits: all of these count. The remedy is nonetheless discretionary. Each case turns on its own facts and the burden of proof rests on the party seeking redistribution.

What the court found

The parties had been together for thirty years, six of them as cohabitees before their marriage in 1999. The wife worked in her husband’s legal practice, cared for his children from a previous marriage, managed both their homes, and made direct financial contributions to municipal accounts for two properties. She received modest remuneration, had no savings, no pension, and no formal qualifications beyond standard eight.

The husband, by contrast, built a successful legal practice, invested in several businesses, accumulated properties, gold coins, artworks, and a family trust. He retired comfortably. She left the marriage at 58 with jewellery worth R45 800 and a broken-down vehicle.

The court accepted that the pre-marital cohabitation period was a relevant supporting factor in the redistribution assessment. Where parties live together as husband and wife and pool their resources, that period can constitute a universal partnership, and here it extended the effective duration of their shared life to thirty years rather than twenty-three.

The court also noted that the husband had not made full disclosure of assets held through the family trust, a factor that informed the court’s overall assessment of his estate. The clean break principle was applied. Rather than granting permanent maintenance, the court ordered redistribution of 40% of the husband’s net estate, together with twelve months of rehabilitative maintenance at R20 000 per month.

What this means in practice

An antenuptial contract excluding accrual is not a guarantee that estates will remain separate at divorce. Where one spouse has contributed, directly or indirectly, to the growth of the other’s estate, a court has the power to order a transfer of assets, notwithstanding the contract.

Generally speaking, the longer the marriage lasts and the greater the disparity between estates, the more likely the Court is to order a transfer of assets. But the outcome is never certain. Courts assess these cases on their individual facts.

Got any questions about your ANC? Ask us.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

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