Our expert says:
Family law expert
A redistribution in an order when one spouse is ordered to transfer certain assets, or part thereof, to the other is designed to remedy the inequality which could flow from the failure of the law to recognise a right of a spouse upon divorce to claim an adjustment of a disparity between the respective assets of the spouses which is commensurate with the respective contributions during the subsistence of the marriage to the maintenance or increase in the estate of the one or the other. They can now share in premium interests as well.
Before a court can grant an order it must be satisfied that at least the following requirements have been met:
1. The parties must have been married prior to 1984 out of community of property in terms of an ante nuptial contract which excluded the community of property, community of profit and loss and the accrual sharing in any form.
2. Parties however must have been able to reach a settlement.
3. The order must be applied for.
4. The order can only be granted against a party against whom the order is sought has more assets than liabilities.
5. The party in whose favour the order is granted must have contributed directly or indirectly to the maintenance or increase of the estate of the other during the subsistence of the marriage.
6. The court must be satisfied it is just and equitable.
In determining what assets, or part thereof, are to be transferred in terms of the redistribution order the court shall, apart from the requirements referred to in 5 and 6 above, take into account the following factors:
1. the existing means and obligations of the parties;
2. any donation made by one party to the other during the subsistence of the marriage, or which is still owing in terms of an ante nuptial contract;
3. any order for the forfeiture of benefits;
4. any other factor which in the opinion of the court should be taken into account.
Family Law Attorney
Abrahams and Gross Attorneys
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