WHAT HAPPENS TO OUR ASSETS ON DIVORCE?
In South Africa, there are three recognised forms of matrimonial property regimes in terms of the Matrimonial Property Act 88 of 1984, namely: Marriages In Community of Property; Marriages Out of Community of Property (without the Accrual system); Marriages Out of Community of Property with the Accrual system.
Upon the termination of a marriage, either by death or divorce, the marital regime applicable to the marriage will determine how the assets of the parties will be divided. In the case of a marriage in community of property, there is no antenuptial contract (ANC). Therefore, should you get married without having drawn up an antenuptial contract, by default; the marital regime applicable to your marriage will be that of in community of property. You might have heard the saying that in community of property is a 50/50 situation. This is because all the assets and liabilities each spouse has prior to entering the marriage and all the assets and liabilities they accumulate during the marriage will form part of the joint estate and each spouse has the right of disposal over the assets. However, there are certain assets that may not be included in the joint estate, for example if a will provides that an inheritance should not form part of the joint estate. There are also certain instances where a spouse will have to obtain the other’s consent prior to binding the joint estate through their actions. Each spouse thus has an undivided or indivisible half share of the joint estate.
A marriage out of community of property without the accrual system involves an ANC (an agreement entered into before the marriage). The ANC changes some or all of the habitual financial consequences of marriage. Spouses may include any provisions they want in their ANC provided they are lawful and consistent with the good morals and nature of marriage. In this instance, instead of a joint estate, each spouse to the marriage has his/her own estate made up of his/her assets and liabilities prior to the marriage and those accumulated during the marriage. The spouses have separate estates and retain exclusive control over their own estates. Upon death or divorce, each spouse will leave with what they entered into and acquired during the marriage.
When married in terms of the accrual system, each spouse acquires a certain right to the other’s property on divorce. A spouse will thus be entitled to share in the growth of the two estates at divorce. What was yours prior to the marriage remains yours and what you have acquired during the marriage belongs to both of you. There is a specific calculation applicable in this instance which determines how the assets acquired during the marriage will be shared upon divorce. Your attorney should explain this calculation during consultation as well as the specific assets that are excluded in the calculation. The accrual system ensures that both spouses gain a fair share of the estate once the marriage ends, making it the most appropriate and ideal way to marry.
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