Dividing Assets in Divorce

When a marriage ends in South Africa, the division of assets between the spouses depends primarily on the matrimonial property regime that applied during the marriage. This regime is usually determined at the time of marriage, either by default or through an antenuptial contract signed before the wedding.

Marriage in community of property

If no antenuptial contract was signed before the marriage, the couple is automatically married in community of property. This means that, with limited exceptions, all assets and liabilities of both spouses are combined into a single joint estate from the date of marriage. On divorce, this joint estate is generally divided equally between the spouses, regardless of who originally owned or earned each asset. Debts are also shared, which means one spouse can become liable for debts incurred by the other during the marriage.

Marriage out of community of property, without accrual

Couples who sign an antenuptial contract before marrying can choose to be married out of community of property, which keeps their separate estates distinct throughout the marriage. Where the antenuptial contract specifically excludes the accrual system, each spouse keeps whatever assets they brought into the marriage or acquired during it, and on divorce there is generally no sharing of growth in either estate. This option offers the most separation between spouses' finances but can produce unequal outcomes if one spouse built up significantly more wealth during the marriage.

Marriage out of community of property, with accrual

The accrual system is a middle ground between full sharing and full separation. Spouses keep separate estates during the marriage, but on divorce, the growth, or accrual, of each spouse's estate during the marriage is calculated and the spouse with the smaller accrual is entitled to a claim against the other for half of the difference. Certain assets, such as inheritances or gifts received during the marriage, can be excluded from the accrual calculation if the antenuptial contract says so. This system aims to recognise both spouses' contributions to the growth of the household's wealth while still keeping initial and separately acquired assets out of the pool.

Assets commonly in dispute

Regardless of the matrimonial regime, certain types of assets tend to generate the most disagreement during divorce:

The family home, particularly when it is registered in one spouse's name but has been the joint residence for many years.
Retirement funds and pension interests, which have their own specific rules for division under South African law.
Business interests, especially where one spouse built or runs a business during the marriage.
Vehicles, household contents and other movable property, which are often divided by agreement rather than court order.

Pension interests

South African law makes specific provision for the division of retirement fund interests on divorce. A portion of one spouse's pension interest can be allocated to the other spouse as part of the divorce settlement or order, and the relevant retirement fund is then required to action this allocation once the divorce order is finalised and the correct documentation is submitted.

Settlement agreements versus court-ordered division

Many divorcing couples reach a settlement agreement covering the division of assets, which is then made an order of court as part of the divorce decree. This is generally faster and less costly than litigating the division through a contested trial. Where spouses cannot agree, the matter may need to be decided by a court, which will apply the relevant matrimonial property rules to reach a division it considers appropriate based on the regime in place and the evidence presented.

Getting professional advice

Because the matrimonial property regime has such a significant effect on the outcome of asset division, it is important to know which regime applies to a particular marriage before entering negotiations or litigation. An attorney who specialises in family law can confirm the applicable regime, explain what documentation is needed, and advise on how specific assets, such as a business interest or a pension fund, are likely to be treated. This page provides general background only and is not a substitute for advice based on the specific facts of an individual case.