Divorce Article 3: What are the matrimonial property regimes and how does this affect a divorce?

Divorce Article 3: What are the matrimonial property regimes and how does this affect a divorce?

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Divorce Article 3: What are the matrimonial property regimes and how does this affect a divorce?

What

are the matrimonial property regimes and how does this affect a divorce?In

South Africa we recognize two matrimonial property regimes, these are:-

1.   A marriage in community of property and

of profit and loss; and

2.   A marriage out of community of property

which has two further categories:

With

the inclusion of the accrual system; and

With

the exclusion of the accrual system.

South

African law rebuttably (with evidence to the contrary) presumes that all

marriages are in community of property. This presumption is rebutted with the

following:-

1.   A valid antenuptial contract; and

2.   A valid postnuptial contact;

While

no party enters into a marriage with the thought of divorce an antenuptial

contract is always advised for several reasons, however, that falls outside of

the scope of this article.

this article we shall consider a marriage in community of property:

When

married in community of property the spouses become tied co-owners in undivided

and indivisible half share of all the assets and liabilities they have at the

time of their marriage, as well as all the assets and liabilities acquired

during the marriage. In simple terms, the separate estates of both spouses merge

into one joint estate. There are however a few exceptions to this rule:-

1.   Assets excluded by a will or deed of

donation;

2.   Assets subject to a usufruct or fideicommissum, please note that while

the asset does not form part of the estate income or proceeds derived does;

3.   Small gifts (jocalia), such as the engagement ring and gifts made with a view to

marriage;

4.   Damages recovered by a spouse, other

than patrimonial damages;

5.   Costs in a matrimonial action that does

not end in divorce; and

6.   Where separate property is replaced by

other assets, the substituted assets remain separate property.

the termination of the marriage (granting of a decree of divorce) all

liabilities are settled from the joint estate and the balance of the joint

estate is then distributed equally between the spouses. This is the general

rule and often departed from. For example, if the spouses own two properties it

may be impractical to sell both and split the funds received. In this instance, it can be negotiated that each of the spouses keeps one property as their own.

This is regulated in a consent paper and will be covered in a separate article.

If the spouses cannot reach an agreement then the general rule will apply.

However, it is important to point out that apart from the above example the Divorce Act

allows for the Forfeiture of

patrimonial benefits of marriage, Section 9 takes the following into

account:

1.   The duration of the marriage;

2.   The circumstances which led to the

breakdown of the marriage relationship; and

3.   Any substantial misconduct on the part

of either spouse.

order for the forfeiture of benefits will only be granted if a court is

satisfied that in the absence of such an order, one spouse will be unduly

benefited in relation to the other. The spouse who makes a claim for a

forfeiture order will have to satisfy the court that a failure to grant the

order will result in that spouse being unfairly prejudiced.

our next article, we shall discuss marriage out of community of property

including and excluding the accrual system.

Related Practice Areas: Maintenance & Spousal Support | Father's Rights | Asset Division

If you have questions about your specific situation, contact Nick Elliot for a confidential consultation.