Divorce and Family Law

 

 

Yes. Spouses can enter into a settlement agreement (also called a consent paper) that outlines how they will divide their assets and liabilities, regardless of their marital regime. This agreement becomes legally binding once made an order of the court.   
 

It is highly recommended to consult with a family law attorney. They can advise you on your rights based on your marital regime, help you negotiate a fair settlement, and represent you in court if necessary. Navigating property division during divorce can be complex, and legal expertise is invaluable

It depends on your marital regime. In community of property, assets owned before the marriage become part of the joint estate and are subject to equal division. In marriages out of community of property without accrual, pre-marital assets remain separate. In marriages with accrual, the value of pre-marital assets is considered when calculating the accrual. 

The accrual is calculated by determining the net value of each spouse's estate at the start of the marriage (as declared in the ANC or a separate statement, adjusted for inflation) and subtracting it from the net value of their estate at the time of divorce. The spouse with the larger accrual then shares half of the difference with the other spouse.   

Generally, yes. In a marriage in community of property, all assets and liabilities are part of a joint estate and are typically divided equally upon divorce. However, a court can order forfeiture of benefits in certain circumstances.  

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Property and Divorce

Understanding Marital Regimes and Property Division with Aucamp Inc

Navigating a divorce involves significant decisions, and understanding how your assets will be divided is paramount. At Aucamp Attorneys, we provide clear and expert guidance on South African marital regimes and their implications for property division, ensuring you are well-informed and your rights are protected.

In South African law

Property encompasses a wide range of assets, including real estate, investments, personal belongings, and financial accounts.
Divorce is the legal termination of a marriage, requiring specific grounds as outlined in legislation.
The division of property upon divorce is primarily determined by the marital regime chosen by the couple.Here are the three main marital regimes in South Africa that impact property distribution during divorce:

Marriage in Community of Property

  • Default Regime This is the automatic marital regime if you do not enter into an antenuptial contract (ANC) before getting married.
  • Joint Estate All assets and liabilities you and your spouse have at the time of the marriage and acquire during the marriage are combined into one joint estate, with limited exceptions.
  • Division on Divorce Typically, the joint estate is divided equally between both spouses upon divorce, regardless of individual contributions. A court may order forfeiture of benefits in specific circumstances of undue benefit.

Marriage out of Community of Property without the Accrual System

  • Antenuptial Contract (ANC) Required This regime requires a signed and registered ANC before the marriage, explicitly excluding community of property and the accrual system.
  • Separate Estates Each spouse maintains their own distinct estate. Assets owned before the marriage and acquired during the marriage remain the separate property of that spouse.
  • Division on Divorce There is no sharing of assets upon divorce; each spouse retains their individual estate.

Marriage out of Community of Property with the Accrual System

Antenuptial Contract (ANC) Required: Similar to the previous regime, an ANC excluding community of property but including the accrual system is necessary and must be registered.

  • Separate Estates During Marriage Spouses maintain separate estates throughout the marriage.
  • Sharing of Accrual on Divorce The net increase in the value of each spouse's estate during the marriage (the accrual) is shared upon divorce. The spouse with the smaller accrual has a claim against the other for half the difference.
  • Calculation of Accrual The accrual is calculated by subtracting the initial value of each spouse's estate (declared in the ANC or a separate statement) from its value at the time of divorce. Certain assets, like inheritances and donations, can be excluded in the ANC.

In summary, your chosen marital regime dictates property division in divorce

  • Community of Property Equal sharing of all assets and liabilities.
  • Out of Community of Property without Accrual No sharing of assets; each spouse retains their separate estate.
  • Out of Community of Property with Accrual Sharing of the growth (accrual) of the estates during the marriage.

Aucamp Attorneys strongly advises couples considering marriage to seek legal counsel to fully understand the implications of each marital regime and to ensure their ANC accurately reflects their intentions and protects their future.

Appointing A Liquidator

In situations where spouses married in community of property cannot agree on how to divide their assets, the court has the power to appoint an independent liquidator. This neutral party will manage the joint estate, sell assets if necessary, and distribute the proceeds according to the law.

Given the complexities involved in divorce proceedings, particularly concerning the division of assets, it is always advisable to seek the assistance of an experienced attorney specializing in divorce law to ensure the best possible outcome. At Aucamp Inc, our dedicated litigation team is available for consultation to provide tailored solutions and guide you through this challenging time. Please do not hesitate to contact us for expert advice and support.