The division of assets in divorce in South Africa is complicated. At the outset and before looking at the factors specific to each case, it is determined by each couple’s marriage property regime.
Marriage in Community of Property
Community of property is the simplest division scenario to understand. Under this regime, all of the assets owned by both spouses, either separately or jointly, whether acquired before or during the marriage, become part of the joint estate. During the divorce, the joint estate is then divided equally between the two spouses. As far as pensions are concerned, each fund would be entitled to pay one half of the fund benefit to the other spouse, if a proper court order states that it should do so.
Marriage Out of Community With The Accrual System
When married out of community of property with accrual, each spouse maintains a separate estate over which they each exercise complete autonomy. When divorce arises, each spouse is obliged to account for what the difference is between the estate they started with, and the estate they have on conclusion. The DIFFERENCE between the 2 accruals is then payable by the spouse whose accrual is bigger. All assets and value which had been excluded in the ANC before marriage are deducted from the accrual before any sharing is calculated.
Marriage Out of Community Before 1 November 1984
Couples married out of community of property prior to 1 November 1984 did not have any accrual option. Although in theory each can keep the entirety of their separate estates, divorce courts are entitled to redistribute the assets between them to reflect the contribution of each to the other’s estate, amongst other factors.
Marriage Out of Community Without The Accrual After1 November 1984
A couple married out of community of property after 1 November 1984 would have to SPECIFICALLY EXCLUDE the accrual system if they wanted to do so. Even if they’ve done so, a recent case has decided that the Court is entitled to perform a redistribution of the assets between them on similar grounds to those above.
For more detailed guidance on the division of assets in divorce in South Africa, be sure to get the help of a seasoned divorce attorney. Contact Blake Attorneys to book a consultation.