The divorce rate in South Africa is currently standing at 50% and in most cases, the primary asset (besides that of the welfare of children) is the immovable property.
For many South Africans, the biggest investment they will ever make is the purchase of a home and it makes sense that it is the largest asset that needs to be divided when couples separate.
The division of assets during a divorce will depend on the marriage regime or the type of marital contract the couple signed when they got married!
There are pretty much three options in which this can happen: in community of property, out of community of property with the application of the accrual system and out of community of property without the application of the accrual system.
(1) In Community of Property
It is important for couples to be aware of the fact that if they don’t enter into an antenuptial contract before marriage, they will be married in community of property by default.
This means that all liabilities and assets are shared by the couple in the dissolution of their marriage.
Something a lot of people aren’t aware of, but when it comes to property, this means that, regardless of when the property was bought or in whose name, the net profits of the property will be divided equally.
One party can also buy the other one out if they can afford to have it transferred to their name. Couples who are already in a customary marriage can apply to the High Court to change their status.
(2) Out of Community of Property with Accrual
Couples opting for this type of marriage need to enter into an antenuptial contract three months before getting married and register this at their local Deeds Office.
This means that couples are entitled to share in the growth of each other’s estates during the marriage period.
And, in the event of a divorce, the amount that is reflected on the original agreement is deducted from the value of the estate to determine the divisible amount.
If a home was bought during the course of the marriage, it has to be sold and the profits are divided or one party may buy the other out. If the home was bought before the marriage and was included in the agreement or if it was bought after the marriage in one spouse’s name, then the net value of the house will go exclusively to that spouse. Obviously, this will affect the accrual of the joint estate.
(3) Out of Community of Property without Accrual
Quite a few people opt for this type of marriage arrangement, which is entering into an antenuptial agreement without the application of the accrual system seen above.
What this means is that both partners will retain their net worth and any assets they had before or during the marriage.
In other words, each person gets what they entered the marriage with and anything they might have individually achieved during the course of the marriage.
Obviously, if both spouses are able to agree on how they want to divide their assets, and in particular their property, then it won’t be necessary to involve the exact basis of their marriage.
However, if an agreement cannot be reached between the two parties, the property must be divided according to the marital regime.
It is important to note that in the event of a dispute, the court holds the authority to divide the assets as it deems fit, for example, if misconduct can be proven against one of the spouses or in the event of abuse.
It may seem strange to think about the division of assets in this way, but it is important for couples to be on the same page when it comes to their net worth.