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Spouses who we were married in community of property and subsequently got divorced
03 February 2020  | Tumi Mokobe

Spouses who we were married in community of property and subsequently got divorced. What’s next regarding their creditors?

Most people are usually confused on the first step to take after divorce in terms of payment arrangements regarding creditors of the joint estate. Some might be thinking of changing their surnames back to their maiden names with the intention of avoiding creditors, others might think that they are still under a legal duty to cover their former spouse’s debts and others are of the opinion that they will now have to inform each and every credit provider of their changed marital status.   

After getting divorced, a person basically starts a new life on a clean slate. However, that is not the position regarding debts incurred during the subsistence of the marriage, or before the marriage if the parties are married in community of property, as a debt is a debt and it needs to be paid.

Nowadays, things are much easier, as divorces hardly go on trial as parties usually settle the matter in order to avoid lengthy legal battles and unnecessary legal costs. In such instances, an attorney will draft a deed of settlement which must be signed by both parties to the divorce and incorporated in the decree of divorce, and in such a deed of settlement all the assets and debts of the parties shall be equally divided as agreed upon. Usually, the party who gets a certain asset, whether movable or immovable, shall be responsible for the debts, unless otherwise agreed upon. Regarding debts which the parties have no tangible assets to show for, such will be divided equally and each spouse shall be liable for his/her 50% share of the debt.

It’s essential to take note that none of the spouses is under a legal obligation to inform creditors about the changed marital status. However, that might be necessary only when creditors come after you if your former spouse, who is supposed to pay a certain debt as per divorce order/deed of settlement, does not adhere to such. The first mentioned shall then inform the creditor of the changed marital status and refer them to the deed of settlement.

Therefore, in light of the above mentioned, it is advisable to inform creditors of your changed marital status after divorce, even if the final decree of divorce can be sent to them it would make things a lot more easier for a spouse and keep him/her on the safe side regarding creditors coming after him/her.


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Tags: Divorce