Kriegler contributed to freedom of women

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Johann Kriegler12 Independent Newspaper Limited. Former judge of the Constitutional Court Justice Johann Kriegler. Picture: Oupa Mokoena.

The balance of financial power between husbands and wives shifted dramatically in South Africa in the mid-1980s with a decision by Judge Johann Kriegler, who went on to oversee the country’s first democratic election as head of the Independent Electoral Commission, in 1994.

Kriegler also made history in August 1985, when he handed down the first definitive judgment under the Matrimonial Property Act introduced in November of the previous year. Awarding a wife in a divorce case one-third of her husband’s net assets and one-third of his monthly income as maintenance, he mused: “Like Solomon, I can but wonder how to measure the worth of a good wife.”

His decision on how much the wife was worth in this case was ground-breaking and was described as courageous by an attorney at the time.

Certainly, it caused consternation among the country’s wealthy businessmen involved in or considering divorce proceedings. Though some women’s rights activists thought an equal split of the assets and no maintenance could have been preferable, the wife was undoubtedly better off than she would have been had she divorced a year earlier.

As an eminent law professor pointed out after the judgment: “Before the introduction of the Matrimonial Property Act last year, she would have left the marriage with a maintenance order and a R1 000 settlement in terms of her antenuptial contract.”

Kriegler’s judgment was later confirmed in substance by the then Appellate Division. Before the introduction of the new matrimonial dispensation, wives were faced with two basic choices: marriage in community of property, or entering into an antenuptial contract. If she chose the first, she would be entitled to a share of her husband’s estate but she would have to be content with the status of a minor for the duration of her marriage, unable even to open a bank account without her husband’s signature.

If she chose the second, she was not automatically entitled to anything from her husband’s estate. What she would get out of the estate had to be provided for in the contract – no matter how much she contributed to the household. The big catch in this case was that inflation and changing circumstances, both personal and in the economy, could erode the value of the settlement.

The new law extended the options by introducing the accrual system for those couples wanting to marry out of community of property. It took into account the extent of the increase in the couple’s wealth during the marriage so a woman’s contribution both in terms of income and her role in the household acquired financial value.

To extend the benefits to people already married at the time, the Act gave courts the discretion to transfer the assets of one spouse to another, in the absence of an agreement between parties married out of community of property.

The judge explained that the amount he had decided on was based on the facts of the case – including that the wife had not worked independently but had contributed to the estate by rearing the children and working in her husband’s business.

Those were the days when successful businesswomen and well-paid professional women were few and far between and women’s earning power was weak. Hearing of the settlement, wealthy husbands were heard grumbling that librarians and nurses managed to come out on far less than the amount Kriegler awarded the wife in the case. Though these particular men were earning a hefty sum themselves, they considered the income of librarians and nurses as a suitable yardstick for measuring any wife’s income.

Other provisions in the Act remedied some of the inequities contained in community of property, ensuring these wives also got a better deal. This is particularly important in the case of women who are unaware that community of property is the default system and that there are alternatives.

While the Act provided a new point of departure, divorce settlements can be influenced by many factors, including the length of the marriage, extra marital affairs and abusive treatment by one of the partners. But, essentially, it levelled the playing field, removing some of the obstacles women face when rebuilding their lives after a divorce – particularly when the split is not of their choosing.



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