Money that cannot be touched in a divorce in South Africa includes the assets owned before the marriage, the assets inherited during the marriage, and the assets that are subject to a prenuptial agreement. The court can, however, weigh the assets in the division of the matrimonial property, especially where the marriage is in community of property or where the assets have been commingled with the matrimonial assets. The list of the assets that are protected from divorce is not exhaustive, and the court will weigh the actual facts of the matter.
This page explains the money that cannot be touched in a divorce in South Africa, the categories of assets that are protected, and the practical process to follow. If you need help with a divorce matter, our Sandton-based Family Law team can assist.
What assets are protected from divorce
The assets that are protected from divorce in South Africa are the assets that are not part of the matrimonial property. The list below gives the categories that are most commonly protected.
- Assets owned before the marriage, where the marriage is in community of property.
- Assets inherited during the marriage, where the inheritance is excluded from the matrimonial property.
- Assets that are subject to a prenuptial agreement, where the agreement excludes the assets from the matrimonial property.
- Assets that are excluded from the matrimonial property by a court order.
Assets owned before the marriage
Assets owned before the marriage are protected from divorce in South Africa, where the marriage is in community of property. The court will weigh the assets in the division of the matrimonial property, especially where the assets have been commingled with the matrimonial assets.
The most common assets owned before the marriage are the immovable property, the bank accounts, the investments, and the other 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.
Assets inherited during the marriage
Assets inherited during the marriage are protected from divorce in South Africa, where the inheritance is excluded from the matrimonial property. The court will weigh the assets in the division of the matrimonial property, especially where the inheritance has been commingled with the matrimonial assets.
The most common assets inherited during the marriage are the immovable property, the bank accounts, the investments, and the other assets. The court will weigh the evidence and decide whether the inheritance has been commingled, and the order will depend on the specific facts of the matter.
Assets subject to a prenuptial agreement
Assets that are subject to a prenuptial agreement are protected from divorce in South Africa, where the agreement excludes the assets from the matrimonial property. The court will weigh the assets in the division of the matrimonial property, especially where the agreement has been breached or where the parties have agreed to vary the agreement.
The most common assets subject to a prenuptial agreement are the immovable property, the bank accounts, the investments, and the other assets. The court will weigh the evidence and decide whether the agreement has been breached, and the order will depend on the specific facts of the matter.
What the court cannot touch
The court cannot touch the assets that are protected from divorce in South Africa, unless 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.
The most common situations where the court can touch the assets are listed below in the order they usually appear in practice.
- Where the assets have been commingled with the matrimonial assets, the court can touch the assets.
- Where the assets have been used to acquire matrimonial assets, the court can touch the assets.
- Where the assets have been used to pay matrimonial debts, the court can touch the assets.
Common Mistakes to Avoid
These are the patterns that leave parties with the wrong outcome.
- Skipping the prenuptial agreement. The prenuptial agreement is a key part of the divorce, and the parties should agree on the terms before the marriage.
- Failing to keep a record of the inheritance. The inheritance is a key part of the divorce, and the parties should keep a record of the inheritance.
- Skipping the supporting documents. The court will not vary the order without the supporting documents.
- 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 money can’t be touched in a divorce in South Africa?
Money that cannot be touched in a divorce in South Africa includes the assets owned before the marriage, the assets inherited during the marriage, and the assets that are subject to a prenuptial agreement. The court can, however, weigh the assets in the division of the matrimonial property, especially where the marriage is in community of property or where the assets have been commingled with the matrimonial assets. Divorce legal fees in South Africa can vary significantly depending on the complexity of the case and the lawyer’s experience. It is essential for individuals to budget for these expenses to avoid financial strain during an already challenging time. Understanding the potential costs involved can help parties make informed decisions as they navigate the legal proceedings.
What assets are protected from divorce in South Africa?
The assets that are protected from divorce in South Africa are the assets owned before the marriage, the assets inherited during the marriage, and the assets that are subject to a prenuptial agreement. The court will weigh the assets in the division of the matrimonial property, especially where the assets have been commingled with the matrimonial assets.
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.
Can the court touch the inheritance?
The court can touch the inheritance where the inheritance has been commingled with the matrimonial assets. The court will weigh the evidence and decide whether the inheritance has been commingled, and the order will depend on the specific facts of the matter.
Can the court touch the assets subject to a prenuptial agreement?
The court can touch the assets subject to a prenuptial agreement where the agreement has been breached or where the parties have agreed to vary the agreement. The court will weigh the evidence and decide whether the agreement has been breached, and the order will depend on the specific facts of the matter.
What is the difference between a protected asset and a matrimonial asset?
A protected asset is an asset that is not part of the matrimonial property, and the court cannot touch the asset in the divorce. A matrimonial asset is an asset that is part of the matrimonial property, and the court can touch the asset in the divorce.
Do I need a lawyer to identify the protected assets in a divorce?
Yes. The identification of protected assets 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 identify the protected assets.
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 the money that cannot be touched in a divorce 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. The financial implications of divorce settlements can significantly impact both parties involved. Understanding how assets are divided and the potential tax consequences is crucial for ensuring a fair outcome. It is essential to approach these settlements with careful consideration to achieve the best possible financial future.