Understanding Divorce Settlement in South Africa

Divorce Settlement in South Africa

When you get married under South African law, two critical systems are in place to determine the division of assets in the event of a divorce. Namely, getting married in community of property or getting married out of community of property (which can be done with or without accrual). The accrual clause states that what was yours before marriage remains yours, and anything accrued while you were together belongs to both parties. So, let us explore both systems in greater detail to understand how divorce settlement works in South Africa:

  • • Getting married in community of property:

  • When you and your spouse get married in community of property, your assets merge, and everything becomes part of your joint estate. These assets could include private property and even liabilities and debt. When parties fail to sign an antenuptial contract before their marriage, they will automatically marry in community of property. Although getting married in community of property is the cheaper option initially, it can have grave ramifications down the line if the marriage doesn’t work out. If one spouse is severely in debt or brought far more economic prowess to the marriage, this system would negatively impact the other spouse, who would have to share the debts or give away half of their assets. Getting married in this system can also cause complications when managing estates.

  • • Getting married out of community of property (without the accrual clause)

  • Unless you and your spouse enter into an antenuptial agreement, the marriage is determined as in community of property. However, by signing an antenuptial agreement, both parties can determine how their assets will be divided in the event of the breakdown of the marriage and a divorce settlement. If you opt to get married out of community of property without accrual, whatever each spouse acquires throughout marriage (and whatever they had before) will belong only to them, rather than being divided between parties. This can negatively impact parties who do not earn an income taking childcare duties into account

  • • Getting married out of community of property (with the accrual clause)

  • Marriages out of community of property automatically include the accrual system unless the parties explicitly remove it. Under this system, any assets or liabilities acquired before the marriage remain separate during the settlement, and anything acquired during the duration of the marriage belongs to both parties and will be divided. Nonetheless, parties can choose to exclude certain things if they so wish and personalise the system according to their particulars.

Chat with Our Qualified Legal Experts About Settlement Options

Understanding how divorce settlement works in South Africa is essential if you are in the process of a divorce. While uncontested divorces might be easier to navigate, especially when they are out of community of property with the accrual clause, contested divorces can be much harder to manage. Here at Riëtte Oosthuizen Attorneys, we have over two decades of experience in family law and will help you to understand the various complexities of divorce settlements so that you can start your new chapter with the ultimate peace of mind. Get in touch with us today.