Changes Underway In Our Divorce Laws For Non- Accrual Marriages Out Of Community

There are sweeping changes to be made to our existing divorce laws. The General Laws Amendment Bill 2025 is expected to be presented to Parliament shortly and the Minister of Justice will be calling for amendments to the Divorce Act 1979 for marriages out of community of property without accrual, to allow the court to grant a redistribution order of the assets to be made either on death or divorce, in such a way that it is considered to be fair and just.

An out of community of property without accrual means that the assets that accrued during the marriage are not shared or taken into consideration when the marriage ends. The changes arose as a result of a case that found its way to the Constitutional Court. In 2023 the Constitutional Court declared that section 7(3) of the Divorce Act 1979 to be invalid and unconstitutional. It gave Parliament 24 months to amend the offending provisions of the Divorce Act 1979. Section 7(3) of the Divorce Act allows the court, in certain instances, to grant a "redistribution order" of the assets of a couple who were married out of community of property.

However it only applied to couples who were married to each other prior to 1 November 1984. The case above which landed at the Constitutional Court argued against section 7 (3) of the Divorce Act, saying that in limiting the court's power to grant a redistribution order only to couples married before 1 November 1984, the section was discriminating and unfair to those couples married after 1 November 1984.

The Constitutional Court agreed said declared section 7(3) it to be unconstitutional and invalid. What is the net effect of all of this? Well this means that once the Amendment of the Divorce Act comes into play, the courts would then be allowed to redistribute assets in marriages without accrual regardless of when the parties were married.

Where a woman opts to be a "stay at home" wife and/or mother, she is often seen as not making a financial contribution to the estate of her husband if the marriages fails, she's left completely vulnerable and financially weakened.

As women are mostly the ones who are prejudiced by the non-accrual marriages, they would now be given greater financial protection, should their marriage terminate either on death or divorce. This redresses the imbalance of the past especially in cases where a wealthy husband who wielded financial control over the wife was able to walk away from the marriage with all the assets intact, leaving the other spouse with little if any assets.

As these changes are about to become a reality, a spouse who previously had no claim of redistribution against the other spouse will now be entitled to convince the court of her/his right to share in certain assets of the other spouse. Unfortunately the amendment will not apply retrospectively.

The amendment will also allow the court to grant a redistribution order in instances where a marriage has ended on the death of a spouse. Consequently the proposed amendments will allow spouses married out of community of property without accrual and who have contributed directly or indirectly in enhancing and growing the other spouse's estate, to have a claim for a redistribution of assets to be granted on the basis that the distribution is just and equitable.

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