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Family Law

Getting Divorced – The effect of the Matrimonial Regime

By 24/02/2011 No Comments

Divorce is an emotional and traumatic experience for most spouses as your lifestyle, and life expectations are compromised.

It is thus important to ensure that your paperwork is in order before you get married. This will expedite the divorce proceedings and minimise animosity between the parties.

When a civil marriage is dissolved, the property is divided between the parties in terms of the matrimonial property system which governed the said marriage. The division can be in terms of:

COMMUNITY OF PROPERTY

When married in community of property (COP), the parties have a joint estate, colloquially referred to as “what is mine is yours and what is yours is mine”.

On dissolution of the marriage, the estate is divided between the parties on an equal basis, whether both parties contributed financially to the estate or not.

One must however bare in mind that should a spouse’s conduct have been so abhorrent, the other party may request the Court to order a forfeiture of benefits.

An order for the forfeiture of benefits under the above property regime, does not entail that the erring party will receive less than half his / her share of the estate, only that he / she will not receive a share of assets that he / she may have been entitled to claim from the other spouse.

THE ANTENUPTIAL CONTRACT
(also known as married out of community of property)

When married by Antenuptial contract (ANC), the parties are deemed to have separate estates, colloquially referred to as “what is mine is mine and what is yours is yours”.

On divorce, both parties receive what they had accumulated during the marriage, and it is commonly accepted that neither will have claims against the other parties estate.

However, an order for forfeiture of benefits may be granted should a spouse satisfy the criteria set out by the Court.

THE ANTENUPTIAL CONTRACT INCLUDING ACCRUAL

The Accrual System is a hybrid between the above matrimonial property systems.

Parties retain control over their own estates during the marriage, to which their acquired assets accumulate.

At the time of divorce, the value of the separate estates are calculated and the lower value is deducted from the higher value. This will indicate the value of the accrual.

In order to place the parties on equal footing, the accrual will be divided between the parties.

Thus, if the value parties’ estates are, at the time of divorce, equal or almost equal, then neither party will have to pay the other, or such payment shall be minor.

If only one party accumulated an estate during the marriage, or accrued a vastly bigger estate than the other, then in that event the accrual payment will be substantial.

THE DISSOLUTION OF CUSTOMARY UNIONS

Customary Unions and the property systems applicable thereto are governed by the Recognition of Customary Marriages Act of 1998.

The proprietary consequences of this type of marriage is dealt with in Section 7 of the said Act, and the dissolution of such marriage is dealt with in Section 8.

In terms of Section 7, the spouses will be deemed to be married in community of property, provided that neither are a spouse in an existing marriage, and an antenuptial contract is absent.

At the dissolution of the marriage, the same procedure will be followed as in civil proceedings in terms of a marriage in community of property.

Should a spouse however wish to enter into a subsequent marriage, he must apply to Court, requesting that a written contract regulating the future matrimonial property system be approved.

It must be noted that the first marriage’s property system will be terminated by Court, and division of the matrimonial property will take place.

Should the marriage(s) between the husband and any of his wives dissolve, the property in the estate will be dealt with in terms of this written contract.

THE DISSOLUTION OF THE MUSLIM MARRIAGE

Currently Muslim Marriages are not acknowledged in terms of South African Law.

Should such a “marriage” dissolve, the property will be dealt with as that of Out of Community of Property.

The Legislature has now drafted a Bill which aims to recognise Muslim Marriages and to provide certainty for spouses in the event of such marriage irrevocably breaking down.

Ian Mc Laren

Ian Mc Laren

Ian Mc Laren

Ian McLaren BA LLB (WITS) General Educated St Johns College, Houghton. BA LLB University of the Witwatersrand 1984 Founded McLarens Attorneys September 1986. Right of Appearance High Court, October 1996. Expertise Litigation, Labour Law, Commercial Law, Family Law, Pension and Provident Funds, Customs and Excise, Wills, Deceased Estates, Trusts, Commercial Agreements, Reviewing and Drafting Government Legislation, Information Technology. Committees/ Trusts Law Society of South Africa Information Technology Committee. Trustee Verney College Educational Trust Other Transvaal Provincial colours for Practical Shooting. Third degree Black Belt JKS Karate. Photographer and motor cyclist Lectured for Continuing Legal Education on Information Technology issues.