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Knowing What You Get in Case of Divorce

The default matrimonial property system under South African law is the community of property. Parties to a marriage are expected to clearly indicate should they wish to have a different matrimonial property system applicable in their marriage.

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Matrimonial Property Act in South Africa

The prevailing legislation in this regard is the Matrimonial Property Act 88 of 1984 (the Act) which provides for the recognised matrimonial property regimes in South Africa.

Before this Act came into effect, a concept of husband marital power in marriages of community of property applied under common law.

This concept translated to a husband having control over the person and property of his wife, resulting in such wife having restrictions with regards to her capacity to litigate and contract. The Act abolished this concept and is no longer of force and effect in our law.

The Act further introduced the concept of accrual in the out of community matrimonial property system.   

Due to the sweeping legal repercussions to one’s personal estate, parties intending to conclude marriage are encouraged to seek legal advice and assistance before the conclusion of such marriage to make informed, secure choices that are best suited for them.

Matrimonial Property Law in South Africa

The Matrimonial Property Act 88 of 1984 provides the following matrimonial property systems as the recognised under the South African legal system:

  1. Marriage in Community of Property

Marriage in community of property is effective to marriage parties being co-owners of assets and liabilities that they both and individually accrued before and during the marriage. The nature of the co-ownership is that these assets and liabilities will be jointly owned in undivided and indivisible shares.

The Courts confirmed this view in the cases of Mazibuko vs National Director of Public Prosecutions 2009 (6) SA 479 (SCA) and De Wet vs Jurgens 1970 (3) SA 38 (A).

Upon valid conclusion of the marriage and by operation of law, individual estates of the parties to the marriage automatically merge in undivided and indivisible shares to form the joint estate.

It does not matter really, that the assets or liabilities concerned must be delivered to be effective in the joint estate. Gifts of engagement, assets barred under a will by a third party, assets under a usufruct and non-patrimonial damages (Section 18(a)) do not form part of the joint estate. This latter part was also confirmed and upheld in the case of Van den Berg vs Van den Berg 2003 (6) SA 229 (T).

Upon dissolution of the marriage, the joint estate will be liquidated, and liabilities settled first, then the residue will be equally divided between the parties.

Prior to finalisation of the divorce, spouses may also opt to negotiate and agree on a settlement of how the joint estate must be dissolved and the Court may incorporate such agreement as an Order of Court together with the divorce decree. Such settlement agreement will have the force and effect of a Court Order.

  1. Marriage out of Community of Property

Where spouses prefer to alter the default matrimonial property system i.e Community of Property, an antenuptial contract shall be executed. The purpose of this instrument is to determine which assets and/or liabilities shall fall into the joint estate.

It is important to note that an informal antenuptial contract which does not comply to statutory requirements is still applicable and effective between the spouses themselves as was upheld in Lagesse v Lagesse 1992 (1) SA 173 (D).

A verbal antenuptial contract was upheld by the Court in the case of Odendaal v Odendaal 2002 (1) SA 763 (W) to the effect that it was binding between the intended spouses who were going through divorce.

However, an informal antenuptial contract is not effective against third parties. A formal antenuptial contract on the other hand, which is executed before a Notary and registered with the Deeds Registry as per Section 87 of the Deeds Registries Act 47 of 1937, is effective against third parties.

Besides the identification of the preferred matrimonial property system, the other details which may be provided for in the antenuptial contract include marriage settlements e.g donations between spouses; succession in the event of death; the right of recourse with regards to household necessities.

 There are two forms of Marriage Out of Community of Property Systems:

  1. Marriage out of Community of Property and community of profit and loss without the accrual system, which is where the spouses are in total separation of their assets and liabilities. Since the coming into operation of the Act, spouses who prefer this system will have to expressly exclude it in their antenuptial contract or else the accrual system shall apply;
  2. The second form is the marriage out of community of property whereby community of profit and loss is retained. In this instance the parties retain assets and liabilities accrued prior the marriage, and those which do not fall into the joint estate during the marriage, but share gains and losses during the subsistence of the marriage as part of the joint estate.

The Accrual System

This matrimonial property system is where spouses in a marriage relationship only share the profit increases in their separate individual estates during the subsistence of the marriage. They are married out of community of property and community of profit and loss. As pointed out above, spouses must expressly exclude the accrual system in their antenuptial contract if they prefer so.

Alteration of the Matrimonial Property System after Conclusion of the Marriage

Alteration of the matrimonial property system after the conclusion of the marriage is possible under Section 21 (1) of the Matrimonial Property Act 88 of 1984.

In the case of Lourens et Uxor 1986(2) SA 291 (C) considerations were formulated which are looked at before arriving at a decision to alter the matrimonial property system after the conclusion of the marriage.

These include the substance of the reasons given for the alteration, the Court being convinced that no other entity will be prejudiced by the proposed alteration and whether sufficient notice to creditors of the spouses has been given.

Van Deventer and Van Deventer Incorporated – Attorneys in South Africa

The division of assets and liabilities between spouses often at times becomes subject to fierce litigation upon divorce. It is therefore imperative that parties seek legal assistance before the conclusion of marriage or soon thereafter if not possible prior thereto, to be guided accordingly and take measures that seek to secure their matrimonial property interests.

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