The assets that are excluded from a divorce in South Africa depend almost entirely on the matrimonial property regime that applies to the marriage. There is no single, fixed list of assets that the law lifts out of the divorce estate. The same asset can be excluded in one marriage and fully divisible in another, depending on whether the parties are married in community of property, out of community without accrual, or out of community with accrual.
The position is set by the Matrimonial Property Act 88 of 1984 and the Divorce Act 70 of 1979, together with the antenuptial contract, where one was signed. This page sets out, regime by regime, what sits outside the divorce estate, and then explains the assets a court can order excluded even where they would otherwise form part of it.
If you are unsure which regime applies to you, the antenuptial contract is registered at the Deeds Office and a copy can be obtained. Our Sandton-based Family Law team can help you confirm the position.
What “excluded from divorce” actually means
An asset is “excluded” from a divorce when it does not fall to be divided between the spouses on divorce. In other words, the asset remains the sole property of the spouse who owns it, and the other spouse has no claim against it. The exclusion can flow from the marital regime itself, from the wording of an antenuptial contract, or from a court order made under the Divorce Act.
The starting point is therefore to identify the marital regime. Only then can the question of what is excluded be answered.
Married in community of property: the joint estate
Where the parties are married in community of property, the Matrimonial Property Act 88 of 1984 creates one joint estate made up of the assets and liabilities of both spouses, regardless of whose name the asset is in. Almost nothing is excluded from the divorce estate in this regime. The joint estate is divided equally on divorce, subject only to a few narrow statutory exclusions.
The assets that the Act does exclude from the joint estate, even in an in-community marriage, are limited. They include assets that a spouse holds on behalf of another person, such as assets held in a fiduciary capacity, and assets that the court orders excluded under section 8 of the Divorce Act (discussed below). An inheritance or a donation received during the marriage is, by default, swept into the joint estate in an in-community marriage unless it is protected by a court order or by a specific term in a will or donation that seeks to ring-fence it.
Out of community of property without accrual
Where the parties signed an antenuptial contract that excludes community of property and excludes the accrual system, each spouse keeps a separate estate for the duration of the marriage. On divorce, each spouse keeps their own assets, and the other spouse has no claim against those assets.
In this regime, the exclusion is the default position. Everything a spouse owns, whether acquired before or during the marriage, remains that spouse’s separate property. This is the simplest regime from an asset-exclusion point of view, but it can produce a harsh outcome where one spouse has contributed indirectly to the other’s estate, for example by raising children and running the household.
For marriages entered into before 1 November 1984 under this regime, section 7(3) of the Divorce Act 70 of 1979 gives the court a discretion to order a transfer of assets where the one party will, in the absence of such an order, not have been awarded a fair share. This discretion is not available to marriages entered into after the accrual system came into force.
Out of community of property with accrual
Where the parties signed an antenuptial contract that excludes community of property but does not exclude the accrual system, each spouse keeps a separate estate during the marriage, but the growth (the “accrual”) in each estate during the marriage is shared on divorce. The accrual system is the default position under the Matrimonial Property Act 88 of 1984 for out-of-community marriages entered into after 1 November 1984.
Under section 4 of the Matrimonial Property Act, the following are excluded from the accrual calculation, even though the marriage is subject to accrual:
- The asset a spouse had at the commencement of the marriage, together with any growth in that asset’s value during the marriage.
- An inheritance, a legacy, or a donation that a spouse received during the marriage, together with any growth in that asset’s value.
- A gratification, such as a prize or award for non-meritorious services, received by a spouse.
- An asset excluded from the accrual by the antenuptial contract itself.
The antenuptial contract can also add further exclusions. This is the most common mechanism a spouse uses to ring-fence a business, a shareholding, or a specific property, by listing it in the contract. If an asset is listed in the contract as excluded from the accrual, it does not form part of the accrual calculation on divorce, although it remains part of the owning spouse’s separate estate.
Assets a court can order excluded: forfeiture under section 8
Section 8 of the Divorce Act 70 of 1979 gives the court a discretion to order that a spouse forfeits some or all of the patrimonial benefits of the marriage, whether those benefits arise from the joint estate or from the accrual system. The court makes the order where the one spouse will, in the absence of the order, be unduly benefited in relation to the other.
The forfeiture remedy is fact-specific. The court weighs the duration of the marriage, the circumstances that gave rise to the breakdown, and any substantial misconduct on the part of either spouse. A forfeiture order has the effect of pulling an asset out of the divorce estate that would otherwise have been shared, and restoring it to the spouse who would otherwise have had to share it.
Inheritances, donations, trusts and life insurance
An inheritance and a donation are excluded from the divorce estate in an accrual marriage, and from the accrual calculation in an accrual marriage, by virtue of section 4 of the Matrimonial Property Act. The position is different in an in-community marriage, where the inheritance or donation is swept into the joint estate unless the will or the donation specifically seeks to ring-fence it.
A trust can sit outside the divorce estate, but only where the trust is genuinely independent of the spouses and is not being used as an alter ego of either spouse. Where a court finds that a trust is in substance the spouse’s own property, the court can, in appropriate cases, treat the trust assets as part of the divorce estate.
A life insurance policy is treated as the property of the person who owns the policy. Where the policy is owned by one spouse and forms part of that spouse’s separate estate, the policy and its surrender value sit outside the divorce estate in an out-of-community marriage. The position of the pension interest is dealt with separately under section 7(7) and 7(8) of the Divorce Act, which permit a pension interest to be claimed and paid to the non-member spouse.
Common mistakes to avoid
These are the patterns that leave a party with the wrong outcome.
- Assuming that an inheritance is automatically excluded. The exclusion depends on the marital regime, and in an in-community marriage the inheritance is swept into the joint estate unless it is ring-fenced.
- Mixing excluded assets with joint funds. Once an excluded asset is mixed into the joint estate, it can be difficult to trace, and the exclusion can be lost.
- Overlooking the antenuptial contract. The contract is the most powerful tool for ring-fencing assets, and the specific exclusions listed in the contract govern the accrual calculation.
- Ignoring the accrual calculation. The accrual is shared on divorce, and the starting values declared in the antenuptial contract can be revisited and corrected where they are inaccurate.
- Failing to consider forfeiture under section 8. Where the one spouse will be unduly benefited, forfeiture is a remedy worth raising with a family attorney.
Frequently Asked Questions
What assets are excluded from divorce in South Africa?
The assets that are excluded depend on the matrimonial property regime. In an out-of-community marriage with accrual, section 4 of the Matrimonial Property Act 88 of 1984 excludes the assets a spouse had at the commencement of the marriage, inheritances and donations received during the marriage, and any asset the antenuptial contract specifically excludes. In an in-community marriage, almost nothing is excluded.
Is an inheritance excluded from divorce in South Africa?
An inheritance is excluded from the accrual calculation in an out-of-community marriage with accrual, by virtue of section 4 of the Matrimonial Property Act 88 of 1984. In an in-community marriage, the inheritance is, by default, swept into the joint estate, although the will can seek to ring-fence it.
Are assets owned before the marriage excluded from divorce?
Yes, in an out-of-community marriage. The assets a spouse had at the commencement of the marriage, together with any growth in those assets, are excluded from the accrual calculation. In an in-community marriage, the assets are swept into the joint estate.
Can a court order an asset excluded from divorce?
Yes. Section 8 of the Divorce Act 70 of 1979 gives the court a discretion to order that a spouse forfeits some or all of the patrimonial benefits of the marriage, where the one spouse will otherwise be unduly benefited in relation to the other.
Is a pension interest excluded from divorce?
A pension interest is not automatically excluded. Section 7(7) and 7(8) of the Divorce Act 70 of 1979 permit the non-member spouse to claim a share of the member spouse’s pension interest, and the pension fund can pay that share directly to the non-member spouse on divorce.
Are trust assets excluded from divorce?
A trust can sit outside the divorce estate, but only where the trust is genuinely independent of the spouses and is not being used as an alter ego of either spouse. Where a court finds that a trust is in substance the spouse’s own property, the court can treat the trust assets as part of the divorce estate.
Does an antenuptial contract exclude assets from divorce?
Yes. An antenuptial contract can list specific assets that are excluded from the accrual calculation. This is the most common mechanism a spouse uses to ring-fence a business, a shareholding, or a specific property, by listing it in the contract.
Get help with your divorce. If you need help identifying the assets that are excluded from your divorce, Otrebski Attorneys’ Family Law team in Sandton can assist. As a 100% women-led firm led by Director Nastasja Otrebski, with a 5-star Google rating across 12 reviews and a Level 4 B-BBEE rating, we focus on clear, practical solutions grounded in South African family law.
Disclaimer. This article provides general information about which assets are excluded from divorce in South Africa. It is not legal advice and does not replace consultation with a qualified family attorney. The relevant law, which is part of the Matrimonial and divorce laws, is set out in the Matrimonial Property Act 88 of 1984 and the Divorce Act 70 of 1979, both of which may be amended. Confirm the current position with a family attorney before relying on anything in this article.