Division of assets in a divorce depends on how you were married in the first place. When you get married you get to choose how your assets will be controlled during the marriage and upon death or divorce.
There are three ways in which you can get married in South Africa:
Marriage in community of property
1. Each spouse has an automatic half share in his/her partner’s growth of the estate
2. Assets acquired before the marriage must be shared equally
3. There is joint liability – this means each spouse is not protected against the creditors of the other
So, for example, if you are married in community of property and your combined assets are valued at R2 000 000.00, each spouse leaves the marriage with 1 000 000.00.
If you cannot remember having signed an Antenuptial contract with an attorney before your marriage, you are in all probabilities married in community of property.
Marriage out of community of property with the accrual system
1. There is a total separation between the estates of the spouses
2. Anything you bring into the marriage remains yours
2 Spouses are not liable for each other’s negligence or criminal fines
3. Each spouse’s estate is protected against the other spouse’s creditors
4. The estate built up during the marriage is shared according to the accrual formula. This means upon divorce a calculation is made to ensure that the party with the lower accrual shares in the accrual of the party with the higher accrual.
An easy example would be:
Peter’s estate was valued at R1 000 000.00 at the time the marriage is contracted and the value of the estate at termination of the marriage was R2 000 000.00.
The amount by which the estate has increased (in this case R1 000 000.00) is the accrual.
Mandy’s estate was valued at R500 000.00 at the time the marriage is contracted and the value of the estate at termination of the marriage was R1 000 000.00.
The amount by which the estate has increased (in this case R500 000.00) is the accrual.
The difference in accrual between the estates of the two parties is therefore R500 000.00 (R1 000 000.00 less R500 000.00).
Therefore Mandy has a claim against Peter’s estate for half of the difference in accrual, that is R250 000.00.
The accrual will consequently be divided equally:
Mandy will get R500 000.00 plus R250 000.00 = R7500 000.00
Peter will get R1 000 000.00 less R250 000.00 = R750 000.00
Marriage out of community of property without the accrual system
1. Spouses have no legal right to share in the growth of each other’s estate
2. There is complete separation of both estates and there is no division of assets upon divorce
This kind of marriage is recommended for couples who are getting married later in life and who have each accumulated their estate during their life time.