Question:
In case of a separation — I married with an ante-nuptial contract (ANC) in 1981 — is my spouse entitled to a portion of my provident fund if not stipulated in the contract?

Answer:
For purposes of your question, it is important to understand the consequences of a so-called 'ANC' marriage — those cases where spouses entered into an ante-nuptial contract prior to getting married. An ante-nuptial contract (without accrual) results in the complete separation of property without any sharing upon dissolution of the marriage.

Before 1984 the concept of an ante-nuptial contract including the accrual system was not applicable in the SA family law context.

What the ante-nuptial contract generally stipulates is that the estates of each spouse will be the property of that spouse only and there will be no sharing of assets and liabilities. Practically this means that whatever assets are accumulated by each spouse before or during the subsistence of the marriage remains the property of that spouse alone. There is no automatic co-ownership of any assets.

In contrast is a marriage in community of property where all assets (except those specifically excluded) are jointly owned and all liabilities are jointly shared.

If your contract is silent on the matter of your provident fund, your spouse will have no automatic claim against your provident fund as this would be an asset belonging to you alone.

Having said that, however, the Divorce Act specifically deals with marriages entered into before 1984 in terms of an ante-nuptial contract by which community of property is excluded. In such a case (and your situation falls into this category), the High Court may, on application by one of the parties, order that certain assets be transferred to the spouse bringing the application. The court must consider a number of factors stipulated in the Act such as whether such an order would be just and equitable by reason that the applying spouse contributed in some way to the maintenance or increase of the estate of the other spouse or rendered services or saved expenses which would otherwise have been incurred.

The rationale for this stipulation in the Divorce Act and its application to the specific marriage pre-1984 scenario seems based on a number or factors:

Before November 1984 there was no option to include the accrual regime into marriages excluding community of property. Where the accrual system is applicable, spouses have separate estates, but share in the growth achieved within their estates during the marriage. Contributions made by one spouse to the growth in the estate of the other spouse are therefore acknowledged. There is basically a sharing of what was built together during the marriage.

Many spouses (in reality usually wives) married before the accrual option became available were in a situation where they were not working, often being stay-at-home mothers and homemakers. They thus earned no independent income and had no significant estates of their own. Yet they contributed to the growth in their husbands’ estates and saved significantly in household and childcare expenses. Their contribution to the growth of their husbands’ estate was essentially made to the detriment of their own estates. Upon disillusion of the marriage, such spouses were potentially left in a very disadvantaged situation. Being married out of community of property, each spouse simply owns what is hers or his.

I would suggest you carefully evaluate your own situation and consider whether your spouse may have reasons to bring an application to share in certain assets, potentially including your provident fund benefit. Did she earn an income? Were you the main breadwinner whom she supported by looking after children and the household, thereby saving you costs and allowing you to grow your own estate? Hard as it is to objectively evaluate in such a situation you should consider whether it may be reasonable, given your very specific situation, for her to be entitled to some of your assets.

Should the Court consider such an order reasonable, it could well include a portion of the provident fund if there are no other assets available.

As a final point, it obviously goes without saying that in divorce matters it is essential to consult an experienced attorney to ensure that the outcome reflects the wishes of, and agreement between, the parties.

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