Dividing property during a divorce can be one of the most complex and
contentious aspects of ending a marriage. The process depends largely on the
marital regime under which the couple was married, which determines how assets
and liabilities are shared between spouses.
Marital Regimes and Property Division
In South Africa, there are several types of marital regimes that govern how
property is managed during marriage and how it is divided upon divorce:
- Community of Property: Under this regime, all assets and liabilities
acquired before and during the marriage are combined into a joint estate.
Upon divorce, the joint estate is typically divided equally between the
spouses, meaning each spouse is entitled to 50% of the combined assets and
debts. - Antenuptial Contract (Out of Community of Property): Couples may
enter into a marriage contract that excludes the community of property. This
means each spouse retains ownership of their own assets and debts, both
before and during the marriage. Property division is then based on the terms
agreed upon in the contract. - Out of Community of Property with Accrual: This is a popular marital
regime where spouses keep their individual estates separate during the
marriage, but upon divorce, the increase (or accrual) in the value of each
spouse’s estate is shared equally. The spouse whose estate grew less during
the marriage may be entitled to a portion of the other’s accrual.
Factors Influencing Property Division
Regardless of the marital regime, courts will also consider additional factors during
property division, such as: - The contributions made by each spouse, whether financial or non-financial
(such as homemaking or child-rearing) - The needs and financial circumstances of each spouse post-divorce
- Any agreements made between spouses, such as antenuptial contracts or
settlement agreements - Protection of minor children’s interests and welfare
Resolving Property Disputes
Property division can be amicably resolved through negotiation and settlement
between spouses, often with the assistance of family law attorneys. However, if
disputes arise, courts will intervene to ensure a fair and legally compliant division
of property based on the applicable marital regime and relevant laws.
How PRAVDA & KNOWLES ATTORNEYS Can Help
At PRAVDA & KNOWLES ATTORNEYS, our experienced family law attorneys
guide clients through the complexities of property division during divorce. We
provide clear advice on your rights and obligations under different marital regimes
and work diligently to protect your interests. Whether negotiating settlements or
representing you in court, we strive to achieve fair outcomes tailored to your
unique situation.