1. In Community of Property

When a couple gets married without entering into an Antenuptial Contract, they are automatically married In Community of Property. This means that the assets of both spouses fall into one combined estate from the moment they are married. This includes the assets they own at the time of the marriage and any assets acquired by either spouse during the marriage., each spouse owns an in the combined estate. It makes no difference who earns more or who buys the assets, the spouses are equal shareholders in the combined estate.

 

Should the parties get divorced, then (apart from in exceptional circumstances), .This means that all the assets of the combined estate must be valued, and each spouse must get 50% of the total.

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2. Out of community of property (without the accrual system)

The only alternative to being married in community of property is being married with an Antenuptial Contract (“ANC”).

 

The ANC is a contract entered between spouses before the marriage and it regulates the proprietary aspects of the marriage. Essentially, the ANC states that each spouse has their own separate estate, that is, each has their own property and their income falls into their own estate.

 

If the parties, then, upon divorce, each party simply retains what they have accumulated in their personal estates during the course of the marriage. , irrespective of whether a spouse worked or not, or how long the marriage has lasted or how the spouses have treated each other. Of course, the spouses may have , such as the home, and there may be major disputes about how to divide such assets or even who is the real owner of such assets.

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3. Out of community of property (including the accrual system)

If the parties included the accrual system in their ANC, then on divorce the outcome is very different from the parties who excluded accrual.

 

During the marriage, as with the marriage excluding accrual, each spouse has their own separate estate. However, on divorce, the law states the spouse whose estate has grown the least during the marriage has a claim against the spouse whose estate has grown the most.  This claim is calculated in the following somewhat complicated way:

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1. At the time of marriage, each spouse calculates the value of the assets in their estate.  This figure is recorded in the ANC, and is called “the initial value”. 

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2. At the time of the divorce, each spouse once again calculates the value of their estate.  This value is then compared to their initial value.  The difference between these two values represents the growth (or accrual) in a party’s estate.

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3. The initial value is adjusted for inflation when compared to the final value.

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4. The party that has the smaller accrual in his/her estate has a claim against the party who has the greater accrual.

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5. To calculate the amount of the claim, one subtracts the value of the smaller accrual from the value of the larger accrual - and then divides that figure by 2.  This is the amount of the claim the party with the smaller accrual has against the party with the larger accrual.

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