More than half of all marriages in South Africa end in the divorce courts and in most cases an immovable property (house/flat/farm) is involved.
For most South Africans a property is the biggest investment they’ll ever make and therefor plays a big role in the divorce settlement discussions.
How assets, including property, are divided during a divorce depends on what marriage regime, or type of marital contract, the couple registered when they were married.
There are three options:
- In community of property.
- Out of community of property, with the application of the accrual system.
- Out of community of property, without the application of the accrual system.
1. Community of property
If a couple fails to enter into an ante nuptial contract before getting married they will automatically be married in community of property. ‘In community of property’ essentially means that both spouses owns half of all the assets and liabilities of their joint estate at the dissolution of the marriage. It does not matter whether the property was bought before the marriage or in whose name the home is registered at date of divorce. If the property has to be sold, the proceeds will be distributed equally. One party can also buy the other out, if they can afford to carry the bond after the transfer of ownership or pay out the other person for his share.
2. Out of community of property with the application of the accrual system
How assets, including property, are divided during a divorce depends on what marriage regime, or type of marital contract, the couple registered when they were married.
Couples opting for this regime need to enter into an ante nuptial contract before they get married, and register this at their local Deeds Office within three months of the wedding.
Getting married out of community of property, with the application of the accrual system, means that parties are entitled to share in the growth of each other’s estates during the marriage period. When divorcing the amount reflected in the original ante nuptial agreement is deducted from the value of the estate at date of the divorce to determine the amount to be divided between them.
3. Out of community of property without the application of the accrual system.
Many people opt to enter into an ante nuptial agreement without the application of the accrual system.
This means that parties retain the net worth and assets they had before the marriage as well as any accrued during the marriage.
It’s important to note that in the event of a dispute the court has discretion to divide the property as it deems fit, if, for example, misconduct can be proven against one of the spouses in the event of proven abuse, for example. If the parties still cannot agree then the court can even appoint a liquidator who will have the right to sell the property and divide the profit as he deems fit, without you having any say in the matter. It is therefore imperative to THINK about your immovable property before marriage and make sure that it is protected if a divorce should unfortunately happen later.
Compiled from: https://www.property24.com/articles/if-divorce-pulls-you-apart-who-gets-the-property/26079