family law south africa

It is a sad fact of life that many of our marriages end up in a divorce; and as the statistics imply that up to two-thirds of all marriages, depending on where you live and into what social bracket you fall, end in a divorce; it is advisable to know your rights.

A divorce order should cover the dissolution of the marriage, custody, guardianship and care of children, maintenance for the spouse (if applicable) and the division of/or be awarding of assets and liabilities acquired before, during and at the end of the marriage relationship.

Thus a divorce order should have certain headings: 1. a decree of divorce; 2. custody care and guardianship of minor children; 3. Maintenance for minor and financially dependent children; 4: Maintenance for spouse; 5. Proprietary rights of the parties.

These will usually be the main issues canvassed in a consent paper or settlement agreement attached to a divorce order and which forms part of that order.

When it comes to proprietary rights and how the Estate or Estates are divided; it very much boils down to how you were married in the first place.

Generally speaking, and if married in the RSA you are either married in community of property or by ANC. If you were married without an ANC; then you are married in community of property and there is only one joint estate managed by both of you; and in which you have a 50% interest both in respect of assets and liabilities.

If you are married by ANC; you are married out of community of property with or without the accrual system, and there are two separate estates. That is about as simple as it gets.

When you get divorced; proprietary rights are normally very important for both parties.

If you are married in community of property; then you will generally share the assets and liabilities of the joint estate equally with your spouse.

When you are married out of community of property; the proprietary benefits are split depending on whether you are married by ANC with accrual system or excluding that system.

The accrual system allows for both parties to share in the nett increase in the estate of the more financially successful of the two partners. For example; if the husband at the time of the ANC was worth R 100000.00 and his wife also worth R 100000.00; but at the divorce he is now worth R 2 million and his wife still only R 100000.00; then by virtue of the accrual she would be entitled to 50% of the increase in his nett estate: 50% of R 1.9 million.

The above is a very simplistic view; but you should get the idea.

However a tricky part of the division of proprietary rights on divorce tends to come into play when dealing with the division and splitting of rights to pension funds as at the date of the divorce.

This is a subject entirely on its own and we will look at it and a case study in our next two blogs.

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Thank you.

The Legal Advice Office Team.



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South Africa

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