Clients sometimes fail to understand this, but a marriage prior to 1984 with an Antenuptial Contract is deemed similar to a marriage in community of property. The accrual system only came into place in 1984 and parties marrying prior to this could only get married in community of property or with an Antenuptial Contract excluding accrual.
Section 7(3) of the Divorce Act 70 of 1979 allows a fair and just distribution of assets acquired by parties during the marriage. In the Redgard case the parties had been married twice. The second marriage in 1979 was by Antenuptial Contract. Both marriages ended allegedly due to the defendant’s (man’s) alleged drinking problem.
The plaintiff (lady) now claimed payment of R33 000. She relied on section 7(3) and what she was really seeking was a transfer of assets in terms of section 7(3). The court is empowered in an appropriate case to order the payment of money in lieu of the transfer of specific assets.
In her evidence the plaintiff stated that throughout the marriage she had worked as a nurse at the Komani Hospital in Queenstown. She had paid all the household expenses and expenses incurred in respect of the children. The defendant had worked as a salesman of motor vehicle products but was unemployed at the time of the divorce.
At the time of divorce a house had been sold for R66 000. There was R22 000 owing on the bond and the defendant also had other liabilities totalling at least R46 000. He had no other assets and his liabilities thus exceeded the value of his assets.
The court was of the view that where the parties have no assets no redistribution order can be made, although an order for the payment of future maintenance can be made in terms of section 7(2) if the circumstances justify such an order.
What has first to be determined is the value of the assets of the parties and in making this determination the liabilities must also be taken into account. The court in the Redgard case found that the man had in fact no assets which could be the subject of a redistribution order.
The decision of the court was that the plaintiff’s claim for R33 000 was dismissed. In my opinion this was the correct decision.
Postnuptial contract - for when you're already married and realise you should have entered into an antenuptial contract, or you want to amend an existing agreement.
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