The court gave a divorcing woman, who is married to her husband out of community of property, the greenlight to claim her share of her husband’s estate, which she said she had helped built over the years, through emotional support, raising the children and help running the family lodge, without ever being paid.

The woman turned to the Mpumalanga High Court, sitting in Mbombela, in a bid to amend her claim during the divorce proceedings to include a redistribution order. She pointed out that they are married out of community of property, excluding the accrual system, in terms of an antenuptial contract.

The woman said she has contributed for nearly two decades to her husband’s estate, without even being formally recognised. As her marriage contract excludes accrual, she is not automatically entitled to anything.

Her husband vehemently objected to her being allowed to amend her claim and he forwarded several technical reasons, such as that her request was made out of the provided time to do so. He also said that in now claiming what she deemed to be her share, would prejudice him.

The wife meanwhile in her application asked the court to have regard to the Constitutional Court judgment in the case of EB vs ER, where the apex court at the end of last year declared a section of the Marriages Act unconstitutional to the extent that it excluded spouses married out of community of property, excluding accrual, after November 1,1984. 

The earlier Constitutional Court ruling means that a court can now order the redistribution of assets based on what is “just and equitable,” allowing for the recognition of non-financial contributions to the marriage, such as household management and childcare.  

This application before the Mbombela High Court is premised on the fact that the applicant (wife) made substantial direct and indirect contributions to the respondent’s (husband) estate. 

Acting Judge SM Msibi remarked that as a result of the Constitutional Court judgment, it is possible for a spouse married out of community of property, excluding the accrual system, such as the applicant, to pursue and seek the distribution order as justice demands it.

However, where contributions of a direct or substantially indirect nature were made to the growth of the other spouse’s estate, the entitlement still stands to be proved at the divorce trial, he said.

In her application for permission to amend her pleadings, the wife told the court that for 18 years she worked in an administrative role at a lodge run by her husband, thereby contributing her skills and labour to the business, without receiving any pay.

She also pointed out that by being the primary caregiver of the children, especially when they were little, it allowed her husband to focus on his work. While being able to exclusively concentrate on his work, it enabled him to acquire a portfolio of immovable properties of considerable value, which the wife now feels she is entitled to a fair share.

Judge Msibi dismissed the husband’s objections to his wife’s proposed amendment of her court papers. He also agreed with counsel for the wife that this case stands on all fours with the facts presented in the earlier case before the Constitutional Court.

He said the applicant does not seek to undo the ante-nuptial contract nor to alter the nature of the matrimonial property regime.

“The purpose of the amendment is seemingly to invoke an equitable remedy now made available to her through constitutional development,” he said.   

zelda.venter@inl.co.za 

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