The need for a flexible and discretionary system of marital property distribution in the South African law of divorce

• Main Author: Lowndes, Gillian Claire
• Other Authors: De Jong, Madelene, 1963-
• Format: Others
• Language: en
• Published: 2015
• Subjects: Matrimonial property regime; Marriage in community of property; Marriage out of community of property; Accrual system; Antenuptial contract; Family contract; Dissolution of marriage; Spousal equality; Substantive equality; Formal equality; Differentiation; Discrimination; Gender-stereotypical expectations; Public-private dichotomy; Pension interest; Pension sharing; Clean-break principle; Judicial discretion upon divorce; Maintenance; Forfeiture of assets; Equitable distribution; Law commission; Financial need; Prenuptial agreement; Qualifying nuptial agreement; 346.1664068; Marital property > South Africa; Equitable distribution of marital property > South Africa; Alimony > South Africa; Divorce settlements > South Africa; Divorce > Law and legislation > South Africa; Judicial discretion > South Africa
• Online Access: Lowndes, Gillian Claire (2014) The need for a flexible and discretionary system of marital property distribution in the South African law of divorce, University of South Africa, Pretoria, <http://hdl.handle.net/10500/18819>; http://hdl.handle.net/10500/18819

Substantive gender equality has yet to be achieved in South Africa. As such, when a decision is made for one of the spouses to a civil marriage to stay at home and care for the children born of the marriage, or make career sacrifices to care for children, that spouse is usually the wife. As a result, while the husband continues to amass wealth and grow his earning potential, the wife is unable to do so. In circumstances where such spouses are married out of community of property or subject to the accrual system with onerous exclusion clauses in the antenuptial contract, the wife may be left with little more than a claim for rehabilitative maintenance in the event of a divorce. The courts only have the discretion to make an equitable distribution of marital property in civil marriages with complete separation of property concluded prior to 1 November 1984 (or 2 December 1988) and customary marriages. It is arguable that this limitation of the judicial discretion violates the equality clause contained in the Constitution of the Republic of South Africa, 1996. A broad judicial discretion to equitably redistribute the spouses’ assets upon divorce is therefore proposed in this dissertation. === Private Law === LL. M.