WHAT ARE YOU ENTITLED TO UPON DIVORCE?
Divorce can be an emotionally and legally complex process. In South Africa, the specific legal consequences of a divorce are largely determined by the matrimonial property regime governing the marriage.
It is therefore crucial to understand the nature and implications of your marriage regime to establish what you may be entitled to upon divorce.
The Matrimonial Property Act 88 of 1984 recognises three primary matrimonial property regimes:
- In community of property
- Out of community of property with the exclusion of the accrual system
- Out of community of property with the inclusion of the accrual system
MATRIMONIAL PROPERTY REGIMES
Marriage in Community of Property
Where parties are married in community of property, all assets and liabilities of both spouses—whether acquired before or during the marriage—form part of a joint estate.
Upon divorce, this joint estate is divided equally, subject to limited exceptions, such as inheritances and certain trust assets.
Marriage out of Community of Property
If the marriage is out of community of property, the terms of an ante-nuptial contract (ANC) determine how property is dealt with at divorce.
- Without the Accrual System
Each spouse retains a separate estate.
Assets and liabilities acquired before and during the marriage remain the sole property of the respective spouse.
- With the Accrual System
While each spouse maintains a separate estate, the growth in each estate during the marriage is subject to sharing upon divorce.
Assets explicitly excluded in the ANC are not subject to accrual.
FORFEITURE OF ASSETS & REDISTRIBUTION ORDERS
Forfeiture of Patrimonial Benefits
In terms of Section 9(1) of the Divorce Act 70 of 1979, a spouse may apply for forfeiture of patrimonial benefits if a divorce is granted on the grounds of the irretrievable breakdown of the marriage. A court may order forfeiture if, considering the duration of the marriage, the causes of the breakdown, and any substantial misconduct, it finds that one party would otherwise be unduly enriched.
Redistribution of Assets
Section 7(3) of the Divorce Act 70 of 1979 allows for a redistribution order in certain circumstances, especially in marriages out of community of property without accrual.
If one party can prove they made substantial contributions (financial or otherwise) to the estate of the other, a court may order a redistribution of assets.
TYPES OF DIVORCE
Contested Divorce
Where parties cannot reach agreement on key issues—such as the division of assets, spousal or child maintenance, or child care and contact—the divorce is contested. These matters are adjudicated by the court, guided by the applicable matrimonial regime.
In cases involving minor children, the court may refer the matter to the Office of the Family Advocate to investigate and make recommendations in the best interests of the children.
Applications for forfeiture, redistribution, or spousal maintenance must be made at the time of divorce, and supporting evidence must be presented to the court, before the court can consider making such orders.
Contested divorces can therefore be protracted and costly
Uncontested Divorce
In contrast, if both parties agree on all terms of the divorce, the divorce is uncontested.
The parties then enter into a settlement agreement, which is made an order of court in terms of Section 7(1) of the Divorce Act.
Such agreements can address any matter relating to the marriage, including asset division, maintenance, pension interest sharing, and childcare arrangements.
Uncontested divorces are typically quicker, less costly, and less emotionally taxing.
CONCLUSION
Divorce raises complex legal questions about your rights and entitlements. Depending on your circumstances, you may have grounds to claim forfeiture, redistribution of assets, or spousal maintenance.
It is strongly recommended that you consult with experienced divorce attorneys to understand your rights, navigate your legal options, and secure a favourable outcome.
Michell Sorei Brown
Associate
Cavanagh and Richards Attorneys
⚖️ Disclaimer: This article is for informational purposes only and does not constitute legal advice. For personalised assistance, please consult a qualified attorney.
