Dividing Property in a South African Divorce

How your property is divided depends first on your matrimonial property regime: married in community of property, out of community with accrual, or out of community without accrual. Check which regime you married under before anything else, because it sets the starting point for everything that follows.

Property is usually the biggest source of worry in a divorce. This guide explains the three regimes, how each one works at divorce, and what you can do to protect yourself.

Step one: which regime are you married under?

If you signed an antenuptial contract, it tells you which applies. If you did not sign one and married in South Africa, you are generally married in community of property. Your marriage date and whether you are a South African citizen can also affect the position, so check with an attorney.

Married in community of property

When you marry in community of property, you and your spouse have a single joint estate. Everything either of you owned at the wedding, and everything you acquire afterwards, goes into it, together with all debts. There are some exceptions, such as certain inheritances or donations that carry a condition that they stay separate.

At divorce, the joint estate is divided equally, so each spouse leaves with half of the net value, after debts. The court can order that one spouse forfeit benefits of the marriage in certain circumstances (see below).

Out of community with accrual

This is the most common regime for couples who sign an antenuptial contract. Your estates stay separate during the marriage, but at the end each spouse shares in the growth of the other’s estate.

The accrual is calculated like this:

1. Work out each spouse’s net estate value at the start of the marriage, as stated in the antenuptial contract or as proved.
2. Work out each spouse’s net estate value at the end of the marriage (the date of the divorce).
3. The accrual of each estate is the end value minus the starting value, with some items (such as inheritances and donations) excluded.
4. The spouse with the smaller accrual has a claim against the other for half of the difference between the two accruals.

A simple example. At the start, both spouses are worth R0. At divorce, one has an estate of R1,000,000 and the other R400,000. The difference is R600,000, so the spouse with the smaller estate can claim R300,000 from the other.

Because the calculation relies on proof of values at the start and at the end, good records matter. Valuations of property, businesses and retirement interests are often needed.

Out of community without accrual

Here, the antenuptial contract excludes accrual. Each spouse keeps what is registered in their own name and generally has no claim on the other’s estate. This can feel harsh for a spouse who stayed home or supported the other’s career. In some situations the court can still make other orders, for example about maintenance, so get advice before assuming you have no claim.

Pension and retirement funds

A spouse’s pension interest is treated as part of their assets at divorce. The non-member spouse may be entitled to a portion, which can be paid from the fund once the court order is made. How much depends on the regime and the circumstances.

Forfeiture of benefits

If a marriage ends by divorce, the court can order that one spouse forfeits some or all of the benefits of the marriage. It looks at how long the marriage lasted, the reasons for the breakdown and any substantial misconduct, and asks whether one spouse would otherwise be unduly benefited. Forfeiture is not automatic and is not a punishment for ending a marriage. It is an exception the court considers on the facts.

The family home

The home is often the most valuable and most emotional asset. Depending on your regime and agreement, the options include one spouse buying the other out, selling and dividing the proceeds, or one spouse staying on for a period. Where there are minor children, their need for stability will influence what is workable. The bond must also be addressed, because a divorce order does not change the bank’s agreement with you.

Tips for protecting your position

• Gather your documents early. Title deeds, bond statements, policies, retirement fund statements, bank statements and business financials.
• Do not move or sell assets without advice. A court can look at whether assets were disposed of to defeat a claim.
• Get valuations where assets are hard to price: property, a business, a farm, or a retirement interest.
• Try to agree. A settlement agreement is quicker and cheaper than a trial. See uncontested divorce and mediation.
• Get advice before you sign anything. A settlement agreement becomes a court order and is hard to undo.

Common questions

Does my spouse automatically get half of everything? Not always. In community of property, generally yes (half of the joint estate). Out of community, it depends on whether accrual applies and on the numbers.

What about property I owned before the marriage? In community of property, it forms part of the joint estate. Under accrual, its value at the start is deducted from the growth when calculating the accrual.

Can we change the regime now? Yes, but only by court application, and not casually. Speak to an attorney.

What happens to the children’s arrangements? Care and contact are dealt with separately from property. See our guide to child custody and contact in a divorce.

Talk to a divorce attorney in Gqeberha

Every estate is different. Bring your antenuptial contract (if you have one) and a list of your assets and debts, and I will tell you what to expect. See our divorce services, how long a divorce takes and divorce papers.

This page is general information about South African divorce law and is not legal advice. Please consult an attorney about your circumstances.