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Constitutional: Antenuptial agreement at center of challenge


A constitutional challenge to the Divorce Act wants to vest a discretion in courts to order a redistribution of assets despite any antenuptial contract excluding community of property and the accrual system. Rapport notes the estranged wife of a wealthy farmer is challenging the constitutionality of section 7(3) of the Divorce Act in the Gauteng High Court (Pretoria). She contends that her in-laws ‘forced’ her 34 years ago to enter into the antenuptial agreement. According to the wife, she was young, naïve, and uninformed when she signed. The Pretoria Attorneys Association (PAA) has joined proceedings as a friend of the court, arguing that such a declaration of unconstitutionality would have severe consequences for divorces in general. It could also affect the position of third parties such as creditors. The PAA argues that the wife should rather base her claim on a universal partnership or claim maintenance. Liezel Haupt SC, on behalf of the PAA, says the woman’s claim cannot be based on constitutional grounds as she was married in 1988 while the Constitution only came into effect in 1997. Stuart Scott, counsel for the wife, argues that a claim based on a universal partnership and/or spousal maintenance would not be appropriate. It is unconstitutional to ignore the woman’s contribution to the household over a 30-year-period and to divest a court from the discretion to take this into account. Judge Elmarie van der Schyff reserved judgment.

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