Divorce Article 4: What are the matrimonial property regimes, out of COP.

Divorce Article 4: What are the matrimonial property regimes, out of COP.

Menu

Nick Elliot

Divorce Law

Unopposed Divorce

Opposed Divorce

Father's rights

Maintenance

Domestic Violence

Contact Us

Blog

ANC Redistribution

Divorce Article 4: What are the matrimonial property regimes, out of COP.

our previous article we considered a marriage in community of property, in this

article we shall consider a marriage out of community of property:

previously mentioned a marriage out of community of property has two

categories, that being:

1.   With the inclusion of the accrual

system, which is the automatic unless excluded; and

2.   Without the inclusion of the accrual

system.

With

the inclusion of the accrual system:

The

accrual system can be described as a statutory variation (sharing) of the

separation of property that has been accumulated during the marriage. Simply,

the accrual system is a postponed community of profit. During the marriage it

will consist of a marriage out of community of property and of profit and loss.

Each spouse retains and controls his/her own estate and everything which a

spouse obtains during the marriage forms part of their own estate, this is

however limited in some instances.

Accrual

sharing (variation) on dissolution of marriage is brought about by giving the

spouse whose estate shows the smaller accrual (increase in the separate estate),

or no accrual, a claim to share in the accrual of the spouse whose estate shows

the greater increase. This is why it is advisable to set a commencement

(initial) value of the estate.

During

the subsistence of a marriage if a party by his/her conduct seriously

prejudices or will potentially seriously prejudice the other party’s right to

share in the accrual of his/her estate at the dissolution of the marriage, the

prejudiced spouse may apply to the High Court for the immediate division of the

accrual.

The

right to share in the accrual of a spouse’s estate is a patrimonial benefit

which may be declared forfeit, either wholly or in part, on divorce.

With

the exclusion of the accrual system:

When

the accrual system has been excluded the parties remain in the same financial

position as they were before the marriage. On dissolution of marriage the

parties do not share in each other’s estates regardless of any growth.

should be noted that the accrual system does not automatically apply to

marriages out of community of property which were concluded before 1 November

1984. Parties may however make the accrual system applicable to their marriage

by means of an order of court pursuant to the provisions of the Matrimonial

Property Act. A marriage in community of property can also be changed to one

out of community of property in this manner.

our next article we will discuss an unopposed divorce and the consent paper.

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.