Divorce Article 13: The Redistribution Order.

***Kindly note that certain aspects of the redistribution order have been declared unconstitutional, an updated article will be prepared in due course. 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 are.

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 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 recognize a right of a spouse upon divorce to claim an adjustment of

a disparity between the respective assets of the spouses which are

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 prior to 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 by

reason 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:

the rendering of services, or

the saving of expenses which would have

otherwise have been incurred, or

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:

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);

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;

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

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.

Related Practice Areas: Maintenance & Spousal Support | Asset Division

If you have questions about your specific situation, contact Nick Elliot for a confidential consultation.