Divorce and Property

9 April 2024 - By Kelsey Nurse

Division of property on dissolution of a marriage can be a challenge, particularly when you do not understand the patrimonial consequences of your marriage regime. This article serves to explain each regime to you and how that applies to the division of property.
South Africa recognises 3 marital property regimes:
• Marriage in community of property;
• Marriage out of community of property with the accrual system;
• Marriage out of community of property without the accrual system.

Marriages in community of property:
What does it mean to be married in community? This means that there is one joint estate that belongs to both parties equally sharing in all assets and liabilities acquired before and during the marriage.
Except when one of the parties has inherited an asset in which the Will of the deceased specifically excludes that asset from community of property of the heir.
Upon Divorce the parties can enter into a Settlement Agreement regarding sharing of assets. If there is no Settlement Agreement signed, the Court will rule that the assets be awarded equally.
If no Antenuptial Contract is signed prior to date of the marriage, the parties will automatically be married in community of property.

Marriage out of community of property
An Antenuptial Contract is signed by both parties and will not be valid unless it is signed prior to the date of marriage in the presence of a Notary Public and it is registered within 3 months of the date of your marriage.
If after your marriage it is determined that you Antenuptial Contract is void, your marriage regime will automatically be in community of property
Parties married in community of property may apply to the High Court after their date of marriage to register a Post Nuptial Contract, and if the Order is granted by the Court, they will be married out of community of property.

A. With the accrual system:
When you’ve decided to get married out of community of property you can choose to exclude or include the accrual. In terms of the Matrimonial Property Act 88 of 1984, Section 4(1)(a) accrual can be defined as follows:
“The accrual of the estate of a spouse is the amount by which the net value of the spouse’s estate at the dissolution of the marriage exceeds the net value of the other spouse’s estate at the commencement of that marriage. “
When drafting an Antenuptial the document should specifically state whether the accrual will apply to the marriage or not i.e., is it included or excluded. If the accrual is included a nett commencement value will be determined at date of the marriage for both parties and will reflect in the Antenuptial Contract, together with any exclusions which the parties have chosen to make.

The general exclusions that apply are as follows:
• Any assets specifically excluded by the parties and the assets each party brings into the marriage ;
• Any inheritance, legacy, trust or donation received by a spouse or third party acquired during or prior to the marriage;
• Any donation between spouses;
• Any delictual claims for non-patrimonial loss, or proceeds of an insurance policy in respect of dread disease; and any amount received in terms of damages.

Upon the dissolution of the marriage the net estate value, meaning the assets less liabilities less the excluded assets / commencement values, of each party will be determined separately. The larger estate must then transfer the difference between the two estates of the parties, to the party with the smaller estate, so that both parties leave the marriage on equal standing. The right to share in the accrual is only upon dissolution by divorce, it also applies on death of the first dying partner.

B. Marriage out of community of property without the accrual system:
If the Antenuptial Contract specifically excludes the accrual system, there will be no sharing of community of property and/or profit and loss. So, what does this mean for you? Well, all your assets are yours to keep, your liabilities remain yours and do not affect your spouse.
Upon the dissolution of your marriage each party will leave with their own assets, unless the parties enter into a Settlement Agreement, or redistribution order to the contrary. You can read our article about a Redistribution order by clicking this link: http://www.duplessisvanloggenberg.co.za/articles.html and choosing the article “Pending changes on marriages out of Community excluding Accrual”