The division of assets on divorce
How your assets are divided in the event of a divorce is determined by the type of your marriage property regime.
Marriage in community of property
If your marriage involves community of property, all assets owned by you and your spouse prior to the marriage, as well as all assets acquired during the course of the marriage, become part of the joint estate, which includes all debts incurred prior to and during the marriage. With divorce, the joint fortune is effectively divided equally between them.
When separating their assets, a couple may choose to tightly enforce their marriage property regime or to negotiate a settlement that is more suited to their unique circumstances, which is, in practise, difficult at best.
According to Section 9(1) of the Divorce Act, the court has authority to order that one party’s patrimonial advantages be forfeited in favour of the other if the court determines that the party would be excessively benefited in respect to the other as a result of the marriage.
Marriage out of community with the accrual system
A couple married outside of common property under the accrual system, each spouse maintains a distinct estate over which they exercise complete autonomy and independence. With a divorce, a claim to a share of the accumulation arises. The accrual is the net growth in the worth of each spouse’s estate since the marriage began, implying that both spouses share equally in the increase in the value of their respective estates during the marriage.
The net value of each spouse’s commencement value at the time of marriage is removed from the net value of each spouse’s estate at the time of divorce. Thus, if the husband’s estate has increased in value more than the wife’s estate, the wife is entitled to up to 50% of the amount by which the husband’s estate has increased in value. Certain assets, such as those expressly excluded in the couple’s ante-nuptial contract, and any inheritance, legacy, trust, or contribution received by a spouse from a third party during the marriage, may be excluded when calculating the accrual. Additionally, any donations made between couples are excluded, as are any damages (as a result of defamation or for pain and suffering) incurred by a spouse.
Marriage out of community without the accrual before 1 November 1984
In the case of couples who were married out of community of property prior to 1 November 1984, each spouse retains their own distinct estate and no assets are shared. However, because those who married previous to 1 November 1984 did not have the accrual system available, the courts may consider a’ redistribution of assets’ in the event of divorce.
Marriage out of community without the accrual after 1 November 1984
A couple married out of community of property after 1 November 1984, are deemed to have specifically rejected the accrual system, and as such, each spouse is deemed to have a distinct estate over which they have complete authority and independence, with no asset redistribution on divorce. In the event of divorce, each spouse retains their separate estates, plus any increase that occurred during the marriage, less any losses. Additionally, each spouse is personally liable for their debts, and the other spouse cannot be held liable.
Written by Heinrich Gonzales, Director of HFG Attorneys Inc.
The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.