When you get divorced in South Africa, your money is divided according to the matrimonial property regime of the marriage. In a marriage in community of property, the assets and liabilities are split 50/50. In a marriage out of community of property, the assets are kept separate, and the court can order the forfeiture of the patrimonial benefits of the marriage. The court will also weigh the parties’ direct and indirect contributions, and the parties’ existing or future earning capacity.
This page explains what happens to your money when you get divorced in South Africa, the matrimonial property regimes, and the practical process to follow. If you need help with a divorce matter, our Sandton-based Family Law team can assist.
What the matrimonial property regime is
The matrimonial property regime is the system that determines how the assets and liabilities of the marriage are divided on divorce. The regime is set at the time of the marriage, and the regime can be in community of property, out of community of property, or out of community of property with the accrual system.
The most common regime is in community of property, where the assets and liabilities are split 50/50 on divorce. The second most common is out of community of property, where the assets are kept separate and the court can order the forfeiture of the patrimonial benefits of the marriage.
In community of property
In a marriage in community of property, the assets and liabilities are split 50/50 on divorce. The court will weigh the parties’ direct and indirect contributions, and the parties’ existing or future earning capacity, but the starting point is 50/50.
The most common assets in a marriage in community of property are the matrimonial home, the bank accounts, the investments, the pension interest, and the other assets. The most common liabilities are the bond, the vehicle finance, the credit card balances, and the tax liabilities.
Out of community of property
In a marriage out of community of property, the assets are kept separate, and the court can order the forfeiture of the patrimonial benefits of the marriage. The court will weigh the parties’ direct and indirect contributions, and the parties’ existing or future earning capacity.
The most common assets in a marriage out of community of property are the assets that the parties brought into the marriage, the assets that the parties inherited during the marriage, and the assets that the parties acquired during the marriage. The court will weigh the assets in the division of the matrimonial property.
Out of community of property with the accrual system
In a marriage out of community of property with the accrual system, the assets are kept separate, and the court will weigh the accrual of the parties’ estates during the marriage. The court will weigh the parties’ direct and indirect contributions, and the parties’ existing or future earning capacity.
The most common assets in a marriage out of community of property with the accrual system are the assets that the parties brought into the marriage, the assets that the parties inherited during the marriage, and the accrual of the parties’ estates during the marriage. The court will weigh the accrual in the division of the matrimonial property.
What the court does with the money
The court will weigh the evidence and decide how to divide the money. The court will weigh the parties’ direct and indirect contributions, the parties’ existing or future earning capacity, and the parties’ other obligations.
The court will also weigh the matrimonial property regime of the marriage. In a marriage in community of property, the court will weigh the 50/50 split. In a marriage out of community of property, the court will weigh the parties’ direct and indirect contributions, and the parties’ existing or future earning capacity.
What you should do
The list below gives the practical steps to take when you get divorced in South Africa, in the order they usually appear in practice.
- List all the assets and liabilities of the marriage, including the assets owned before the marriage and the assets inherited during the marriage.
- Value each asset and liability, including the immovable property, the bank accounts, the investments, and the other assets.
- Negotiate the settlement with the other party, including the division of the assets, the maintenance of the children, and the spousal maintenance.
- File the settlement agreement with the court, and apply for the decree of divorce.
Common Mistakes to Avoid
These are the patterns that leave parties with the wrong outcome.
- Skipping the asset inventory. The assets must be listed in the settlement agreement, and the parties must value them correctly.
- Forgetting the pension interest. The pension interest is usually the largest asset, and the parties must value it correctly.
- Skipping the tax implications. The transfer of an asset can trigger capital gains tax, and the parties should seek tax advice.
- Letting the dispute escalate. The right path is to engage with the other party and apply for variation where appropriate.
- Quitting the process before the order is granted. The divorce is not final until the decree is granted.
Frequently Asked Questions
What happens to your money when you get divorced in South Africa?
When you get divorced in South Africa, your money is divided according to the matrimonial property regime of the marriage. In a marriage in community of property, the assets and liabilities are split 50/50. In a marriage out of community of property, the assets are kept separate, and the court can order the forfeiture of the patrimonial benefits of the marriage.
What is the matrimonial property regime?
The matrimonial property regime is the system that determines how the assets and liabilities of the marriage are divided on divorce. The regime is set at the time of the marriage, and the regime can be in community of property, out of community of property, or out of community of property with the accrual system.
How is money divided in a marriage in community of property?
In a marriage in community of property, the assets and liabilities are split 50/50 on divorce. The court will weigh the parties’ direct and indirect contributions, and the parties’ existing or future earning capacity, but the starting point is 50/50.
How is money divided in a marriage out of community of property?
In a marriage out of community of property, the assets are kept separate, and the court can order the forfeiture of the patrimonial benefits of the marriage. The court will weigh the parties’ direct and indirect contributions, and the parties’ existing or future earning capacity.
What is the accrual system in South Africa?
The accrual system is the system that determines how the assets are divided in a marriage out of community of property. The court will weigh the accrual of the parties’ estates during the marriage, and the party with the smaller accrual will receive half the difference from the party with the larger accrual.
Can the court touch the assets owned before the marriage?
The court can touch the assets owned before the marriage where the assets have been commingled with the matrimonial assets. The court will weigh the evidence and decide whether the assets have been commingled, and the order will depend on the specific facts of the matter.
Do I need a lawyer to divide my money in a divorce?
Yes. The division of money in a divorce is a complex legal process, and the parties should seek legal advice to ensure that their interests are protected. A lawyer can help the parties understand the law and prepare the settlement agreement. The financial impacts of divorce settlements can vary significantly based on each party’s assets and their respective financial situations. Understanding these implications is crucial for making informed decisions about future financial stability. Moreover, the consequences of poorly structured settlements can lead to long-term financial difficulties.
Get help with your divorce. If you need help with a divorce, Otrebski Attorneys’ Family Law team in Sandton can assist. As a 100% women-led firm with a 5-star Google rating, we focus on compassionate, practical legal solutions for families.
Disclaimer. This article provides general information about what happens to your money when you get divorced in South Africa. It is not legal advice and does not replace consultation with a qualified family attorney. The relevant law is set out in the Divorce Act 70 of 1979 and the Matrimonial Property Act 88 of 1984, both of which may be amended. Confirm the current position with the Department of Justice and Constitutional Development or speak to a family attorney before relying on anything in this article. Divorce legal fees in South Africa can vary significantly depending on the complexity of the case and the attorney’s experience. It is essential to budget for these costs, as they can add up quickly. Many individuals may also explore mediation as a way to minimize legal fees while still reaching a fair settlement.