Divorce procedure in community of property in South Africa 2022

Divorce procedure in community of property in South Africa 2022

Unfortunately, many South African marriages have ended in divorce. Typically, when a court grants a divorce, most parties divide their assets equally, though not all. So how does divorce work in the community of property marriage in South Africa? Here is a detailed guide discussing the divorce procedure in the community of property in South Africa.

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Divorce procedure in community of property in South Africa 2022
Get details of the divorce procedure in community of property in South Africa in 2022 here! Photo: @schilllawgroup
Source: Instagram

What happens when you divorce in community of property? This is one of the most asked questions by divorcees who had their assets in the joint estate. But, of course, the assets must be divided once the court grants the divorce decree. So, how much property is given to the wife after divorce? Check out this guide detailing the divorce procedure in community of property in South Africa in 2022.

The divorce procedure in community of property in South Africa

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Before we delve into this subject, let us remind ourselves what being married in community of property means. In simple terms, it means that both parties vow to share all assets and debts, except where one acquires an inheritance. So, before the eyes of the law, both parties are seen and considered a joint unit referred to as an estate.

What is the divorce procedure when married in community of property?

Divorce procedure in community of property in South Africa
The guideline of the divorce procedure in community of property in South Africa in 2022 states that both parties married in community of property u share the assets 50/50. Photo: @smartdivorce
Source: Instagram

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Typically the rule about the transfer of property after divorce in South Africa when married in community of property is that you share the assets 50/50. However, the underlying condition is that the two of you must not have signed an ante-nuptial contract (“ANC”) before tying the knot.

How are assets divided in a divorce in South Africa?

If the parties involved were married in community of property, then the assets are divided equally. However, the rules may change if one spouse claims forfeiture and the court grants them a forfeiture order.

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What is a forfeiture order in divorce?

A forfeiture order is granted when one party forfeits the assets obtained due to marriage in community of property or benefits accrued from an ante-nuptial claim.

Divorce procedure in community of property
Assets are divided equally as stated in the divorce procedure in community of property in South Africa, unless one spouse claims forfeiture and the court grants them the order. Photo: Malte Mueller
Source: Getty Images

Who gets the house in divorce in South Africa?

After the divorce order, one spouse can become the 100% owner of the communal home, but with a suitable financial adjustment that accounts for the value of the other spouse’s 50% share.

What are the disadvantages of marriage in community of property?

Unfortunately, one of the disadvantages of community of property marriage is that if one party dies intestate, the other party only gets half the assets. The other half is set aside for the dependents, who are, in most cases, the children.

What is the divorce procedure if you are married out of community of property?

Divorce procedure in community of property
The divorce procedure in community out of property in South Africa requires each party to keep what they brought to the marriage. Photo: Peter Dazeley
Source: Getty Images

In such a case, it means that you have separate estates. So, what you brought to the marriage remains yours, as well as growth in asset value during the union, depending on whether the accrual system applies.

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However, in 2022, Gauteng High Court, reserved judgment in an application to allow divorcing spouses married out of community of property and without the accrual system, to be compensated for what is considered their financial contribution to the marriage.

What are my rights as a wife in a divorce procedure in community out of property?

Perhaps you have seen this question and many more questioning what a woman can claim during a divorce settlement. So what can the wife claim in divorce?

Each partner keeps what they brought into their marriage. So, the wife will keep the assets they brought to their union, including the growth in asset value during their marriage.

The divorce procedure in community of property in South Africa 2022
The divorce procedure in community of property in South Africa demands the wife and husband share their assets equally. Photo: Wutthichai Luemuang / EyeEm
Source: Getty Images

What happens to the family home in a divorce?

The decision is based on several factors. For instance, the decision is influenced by the terms of your ANC and whether you were married with or without “accrual”.

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The basic default is “with accrual” unless you primarily chose to wed “without accrual”. If the house is currently registered in only one of your names and that spouse is to keep the house, no formal transfer nor endorsement of the title deed is required.

The divorce procedure in community of property requires both parties to share the assets 50/50. However, as of the house, one party can become the 100% owner but with a financial adjustment accounting for the value of the other spouse’s 50% share.

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