Wife who signed antenuptial contract seeks share in estate after working at family lodge without salary
The Mpumalanga High Court in Mbombela has granted a divorcing woman the ability to amend her claim for a share of her husband’s estate.
The woman brought an application seeking to claim a share in the estate despite signing an antenuptial contract agreeing to walk away with nothing after divorce. She argued that her emotional and practical contributions have significantly aided in building her husband’s wealth, particularly through raising their children and supporting the family lodge they ran together, all while receiving no formal payment for her efforts.
She meticulously detailed her long-standing commitment and support—both directly and indirectly—that facilitated her husband’s business success and accumulation of property.
Throughout the proceedings, the woman emphasised her role in the family’s lodge, where she worked in an administrative capacity without a salary, and how her dedication as the primary caregiver allowed her husband the freedom to focus entirely on his professional ambitions. The fruits of his labour culminated in a portfolio of significant immovable properties, from which she now asserts she deserves a fair share.
Her husband strongly opposed her request to amend her claim, presenting several technical arguments, including that her application was submitted beyond the designated timeframe. He also contended that her claim to what she considers her share would unfairly disadvantage him.
To support her application, the wife requested the court to consider the Constitutional Court ruling in the case of EB vs ER, where the apex court declared a section of the Marriages Act unconstitutional for excluding spouses married out of community of property, excluding accrual, after November 1, 1984.
The prior ruling by the Constitutional Court indicates that a court can now mandate the redistribution of assets based on principles of “justice and equity,” thereby acknowledging non-financial contributions to the marriage, such as managing the household and providing childcare.
Acting Judge SM Msibi said the wife did not seek to undo the ante-nuptial contract nor to alter the nature of the matrimonial property regime. However, the purpose of the amendment is seemingly to invoke an equitable remedy now made available to her through constitutional development.
He noted that due to the Constitutional Court ruling, it is now feasible for a spouse married out of community of property to seek a redistribution of assets.
“Prior to the EB judgment, the applicant had no cause of action under section 73 and thus no redistribution claim was pleaded by her,” said the judge.
Judge Msibi granted the wife leave to amend her counterclaim.
sinenhlanhla.masilela@iol.co.za
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