Divorce Article 13: The redistribution order

In our previous article, we briefly discussed maintenance between spouses. In this article, we shall consider what a redistribution order is and what the requirements to obtain such an order is.

It is suggested that our articles on matrimonial property regimes and maintenance between spouses be read before you read this as there is some overlapping.

Due to the introduction of the accrual system, a spouse who had been married out of a community of property would have no legal claim to share in the estate of the other spouse. Due to this a reformative and remedial measure was required. This is a redistribution order.

In its simplest terms, a Court may, in specific circumstances, make an order that the assets or portion of the assets belonging to a spouse may be transferred to the other spouse if it is just to do so. In this manner, any inequity may be remedied “from the failure of the law to recognise a right of a spouse upon divorce to claim an adjustment of a disparity between the respective assets of the spouses which is incommensurate with their respective contributions during the subsistence of the marriage to the maintenance or increase of the estate of the one or other.”

The prerequisites set out in the Divorce Act 70 of 1979 are as follows:

A court granting a decree of divorce in respect of a marriage out of community of property may only exercise their power to order a redistribution if the parties-

   (a)   entered into before the commencement of the Matrimonial Property Act, 1984, in terms of an antenuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded; or

   (b)   entered into before the commencement of the Marriage and Matrimonial Property Law Amendment Act, 1988, in terms of section 22 (6) of the Black Administration Act, 1927 (Act 38 of 1927), as it existed immediately before its repeal by the said Marriage and Matrimonial Property Law Amendment Act, 1988,

And the parties did not enter into any agreement concerning the division of their assets (antenuptial contract).

However, the following requirements must also be met:

A redistribution order shall not be granted unless the court is satisfied that it is equitable and just because of the fact that the party in whose favour the order is granted, contributed directly or indirectly to the maintenance or increase of the estate of the other party during the subsistence of the marriage, either by:

1. the rendering of services, or

2. the saving of expenses which would have otherwise have been incurred, or

3. in any other manner.

What must be of paramount importance to the Court when making a redistribution order is that of equity.

The final issues for consideration by the Court are:

1. the existing means and obligations of the parties, including any obligation that a husband to a marriage as contemplated in subsection (3) (b) of this section may have in terms of section 22 (7) of the Black Administration Act, 1927 (Act 38 of 1927);

2. any donation made by one party to the other during the subsistence of the marriage, or which is owing and enforceable in terms of the antenuptial contract concerned;

3. any order which the court grants under section 9 of the Act or under any other law which affects the patrimonial position of the parties; and

4. any other factor which should in the opinion of the court be taken into account.

In our next article, we shall discuss some final miscellaneous matters regarding divorce law which shall conclude this topic.