Family Law & Mediation

We assist clients with advice regarding the proprietary claims in their marriage.

In a marriage in community of property, division of the joint estate is a natural consequence of a divorce. Forfeiture of benefits of the marriage in community of property can however be claimed by a party. The court would have regard to various factors i.e. the duration of the marriage, circumstances leading to the breakdown, misconduct of one of the parties etc.

Where the marriage is out of community of property specifically excluding the accrual system and entered into after 1 November 1994, on dissolution of the marriage in essence each spouse retains his or her own separate assets. There are, however various other potential claims which may be instituted based on moneys loaned and advanced, universal partnerships etc. Where a marriage is out of community of property without the accrual and entered before 1 November 1984 a redistribution order in terms of section 7 (3) of the divorce Act can potentially be claimed by a successful party. In order to be successful, a party must satisfy the court that he or she contributed directly or indirectly to the increase of the estate of the other.

Where the marriage is out of community of property subject to the accrual system the net assets of each spouse is determined. Any assets specifically excluded from the operation of the accrual in the Ante-nuptial Contract are excluded from the calculation.

Any commencement value, increase in accordance with the rise in the Consumer Price Index (CPI) from date of marriage to date of divorce, is deducted from the accrual to each party's estate. The net results (estates) of each party are considered and the lesser net accrual deducted from the greater.

The net difference between the parties is then divided in two or in such other ratio as the parties may have agreed in their Ante-nuptial Contract and the party showing the greater accrual shall pay the other such amount in settlement of the matrimonial consequences of the marriage.

A contract entered into prior to marriage with the purpose of regulating the terms and conditions of the marriage. The parties to an ante-nuptial contract are the prospective spouses. Only prospective spouses that are free to marry each other or enter into a same-sex civil union may enter into an ante-nuptial contract.

Why is an Ante-nuptial Contract important?

If your spouse becomes indebted, to protect yourself against your spouses' creditors, it is crucial that you have an ante-nuptial contract that is registered at the Deeds Registry. The ante-nuptial contract must be signed prior to the marriage and registered within three months after signature.

What happens if you are married but forgot to enter into an Ante-nuptial Contract or want to change your marital regime?

Luckily for you there is a solution albeit a very costly solution. The High Court may authorise the postnuptial execution of a contract which in effect is an ante-nuptial contract if certain requirements are complied with. Contact our offices for more information in this regard.

The different types of marital regimes.

Different types of regimes

Read through the different types of marital regimes to see which one will best suit you and your prospective spouse. If you are still uncertain about which system would work best for you after reading this information, please contact our offices to set up a consultation in order to discuss the different regimes in more detail.

In Community of Property

If you fail to enter into an ante-nuptial contract, you will automatically be married in community of property. You will share a joint estate with your spouse, meaning that you will be joint owners of everything within the joint estate, however you will also be liable for debt incurred within the joint estate, therefore if your spouse is reckless and incurs debt, you will be liable for the debt.

Here are a few more disadvantages: If you sell immovable property, shares, stock, jewellery or any other property held as investments, you will need your spouse's written consent in order to do so.

If you wish to enter into a credit agreement, you will need written consent from your spouse.

If you intend to bind yourself as surety, you will need written consent from your spouse.

If you become insolvent, creditors are entitled to the joint estate.

Marriages out of community of property with application of the accrual system.

Each spouse is the owner of their own estate which means that they may own property independently of each other and are liable for their own debt.

Inheritances, legacies and donations, including assets acquired by virtue of them are excluded from accrual, unless the spouses agree otherwise in their ante-nuptial contract or if the testator or donor stipulate otherwise.

Marriages out of community of property excluding the accrual system

Each spouse is the owner of their own estate which means that they may own property independently of each other and are liable for their own debt. The difference lies in that when the marriage dissolves neither spouse has a claim against the other spouse, except for a possible maintenance claim.

The South-African Legal System

By default a marriage is concluded IN Community of Property in the South African legal system. A couple about to get married will have to decide whether they would want to be married IN community of Property or OUT of community of property.
The only way to be married OUT of Community of Property, is to enter into a marital agreement, better known as an Ante-nuptial Contract (ANC), before the marriage is concluded. The Ante-nuptial Contract also has to be attested before an attorney who is a Notary prior to the marriage. The contract will then be registered in the applicable Deeds Office.

Should a couple wish to enter into an Ante-nuptial Contract, there would be a further choice of whether the Accrual System is to be adopted or not. The accrual system can plainly be described as the ideal partnership for most relationships, giving you the benefit of separate estates but keeping the accrual of assets and debt from the date of marriage fair.

We assist clients in obtaining protection orders under the domestic violence act in cases where domestic violence has been committed. Domestic violence includes physical abuse, sexual abuse, and emotional, verbal and psychological abuse.

It further includes intimidation, harassment, stalking, and damage to property, entry into someone's residence without consent where the parties do not share the same residence or any other controlling or abusive behaviour towards the complainant.