Divorce Article 4: What are the matrimonial property regimes, out of COP.
In our previous article we considered a marriage in community of property, in this article we shall consider a marriage out of community of property:
As 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.
It 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.
In our next article we will discuss an unopposed divorce and the consent paper.
***Kindly note that the contents of this article are intended for information purposes only and does not constitute legal advice. Please consult an attorney.