1. In Community of Property

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When a couple gets married without an Antenuptial or Marriage Contract, they are automatically married "In Community of Property". This means that the property of both spouses combine to form one "joint estate". This includes property they own at the time of the marriage,  and any property they acquire during the marriage.

 

It makes no difference which spouse earns more or who buys the property and possessions, both spouses are equal shareholders in the combined estate. If either spouse has debts, these also belong to the one joint estate.

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During such a marriage, there are many times when the parties need to get the permission of the other spouse to buy and sell certain kinds of property (like a house).

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If the couple get divorced, then all the assets and property in the joint estate must be shared equally between the spouses. This includes even their pension or provident funds!

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It is not recommended that parties get married In Community of Property (i.e. without a marriage contract). There are various reasons for this, which will be discussed during your consultation.

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2. Out of Community of Property

Instead of getting married In Community of Property, many couples choose to marry with an Antenuptial or Marriage Contract (called an “ANC”).

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The ANC is a contract between the spouses, which is signed before they get married. Basically, the marriage contract says that each spouse will own their separate possessions and money.

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Property and possessions belonging to each spouse are not automatically shared with the other spouse, as with a marriage In Community of Property. Each spouse has their own "estate" and manages their own money and property.

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Each spouse does not need the permission of the their partner to deal with their assets and money. Each party is also responsible for their own debts. 

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If the parties get divorced, each party keeps their property, including their pension or provident funds and any investments and money they have saved.  They also keep their own debts. There is no sharing in each other's estates.

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3. Out of Community of Property - With the Accrual System

Parties may choose to get married out of community of property, but with the Accrual System. So long as the parties remain married, it makes no difference whether the parties are married with or without the accrual system. That is, they each have their own separate property and possessions (as explained above).

 

However if the parties get divorced then there is a major difference if parties are married with the accrual system.  

 

When parties married with the accrual system get divorced, the party whose estate has grown the least, can claim from the party whose estate grew the most.  

 

The way in which the claim of the poorer spouse is calculated is rather complicated, and will be explained in detail during your consultation. 

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However in brief, it works as follows:

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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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