What are the matrimonial property regimes and how does this affect a divorce?

In South Africa we recognise two matrimonial property regimes, these are:-

1. A marriage in community of property and of profit and loss; and

2. A marriage out of community of property has two further categories:

South African law regrettably (with evidence to the contrary) presumes that all marriages are in a community of property. This presumption is rebutted with the following:-

1. A valid antenuptial contract; and

2. A valid postnuptial contact;

While no party enters into a marriage with the thought of divorce an antenuptial contract is always advised for several reasons, however that falls outside of the scope of this article.

In this article we shall consider marriage in community of property:

When married in community of property the spouses become tied co-owners in the undivided and indivisible half share of all the assets and liabilities they have at the time of their marriage, as well as all the assets and liabilities acquired during the marriage. In simple terms, the separate estates of both spouses merge into one joint estate. There are however a few exceptions to this rule:-

1. Assets excluded by a will or deed of donation;

2. Assets subject to a usufruct or fideicommissum – please note that while the asset does not form part of the estate income or proceeds derived does;

3. Small gifts (jocalia) – such as the engagement ring and gifts made with a view to marriage;

4. Damages recovered by a spouse – other than patrimonial damages;

5. Costs in a matrimonial action that does not end in divorce; and

6. Where separate property is replaced by other assets, the substituted assets remain separate property.

At the termination of the marriage (granting of a decree of divorce), all liabilities are settled from the joint estate and the balance of the joint estate is then distributed equally between the spouses. This is the general rule and often departed from. For example, if the spouses own two properties it may be impractical to sell both and split the funds received. In this instance, it can be negotiated that each of the spouses keeps one property as their own. This is regulated in a consent paper and will be covered in a separate article. If the spouses cannot reach an agreement then the general rule will apply.

However, it is important to point out that apart from the above example the Divorce Act allows for the Forfeiture of patrimonial benefits of marriage, Section 9 takes the following into account:

1. The duration of the marriage;

2. The circumstances which led to the breakdown of the marriage relationship; and

3. Any substantial misconduct on the part of either spouse.

An order for the forfeiture of benefits will only be granted if a court is satisfied that in the absence of such an order one spouse will be unduly benefited in relation to the other. The spouse who makes a claim for a forfeiture order will have to satisfy the court that a failure to grant the order will result in that spouse being unfairly prejudiced.

***Kindly note that the contents of this article are intended for information purposes only and does not constitute legal advice. Please consult an attorney.

In our next article, we shall discuss marriage out of community of property including and excluding the accrual system.