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Recently, in the case of Greyling vs Minister of Home Affairs and Others, the Pretoria High Court made a big decision about a part of the Divorce Act. This decision, announced on October 10, 2023, could have a big impact on antenuptial agreements and what happens to your assets and funds if you get divorced.


Understanding Where We’re Coming From

To understand why this decision is so important, we must look at how marriage property rules have worked in South Africa. Traditionally, marriages were divided into two types: ones where all assets and funds are shared equally (in community of property) and ones where each person keeps their own assets and funds (out of community of property). The rules changed in 1984 with the Matrimonial Property Act, which let couples decide if they wanted to share their assets or not. The Divorce Act also came into play, giving judges the power to decide who gets what when a marriage ends, especially for marriages before 1984.


Expanding Your Rights

Now, thanks to this recent court decision, more people have the right to ask for a fair share when they get divorced. Before, only couples married before 1984 could ask a judge to decide who gets what. But now, even if you got married after 1984 without sharing your assets, you still might be able to ask for a fair share if you get divorced. This is all about making things fair for both parties, even if you didn’t plan for it in your antenuptial agreement.


What It Means for Your Antenuptial Agreement

If you already have an antenuptial agreement or are thinking about getting one, you might be wondering how this affects you. Well, even if you agreed in your antenuptial that you wouldn’t share your assets and funds, this court decision could change things. Now, both parties in the marriage might be able to ask for a fair share of assets, even if the antenuptial says otherwise. But remember, just because you ask for a fair share doesn’t mean you’ll automatically get it. The judge will still have the final say.


So, what does all this mean for you? It means that if you are married or planning on getting married in South Africa, it’s important to understand how the law might affect your assets if you ever get divorced. This court decision is a step towards making things fair for everyone, but there could still be more changes in the future. Keep an eye on the legal landscape, and make sure you understand your rights and options when it comes to your antenuptial agreement.

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