Divorce property rights in South Africa depend heavily on the matrimonial property regime. In community of property results in a 50/50 split of all assets, while out of community with accrual shares growth. Out of community without accrual keeps estates separate. Forfeiture (for misconduct) or trust assets (if controlled by a spouse) may alter final divisions.
Key Property Regimes & Division
• In Community of Property: The default, sharing all assets and debts equally.
• Out of Community of Property (with Accrual): Assets acquired during the marriage are shared, aiming for equitable division.
• Out of Community of Property (without Accrual): Each party retains their own assets and liabilities, unless jointly registered.
• Trust Assets: Generally, trust assets are separate, but court decisions like Badenhorst v Badenhorst allow "piercing the trust veneer" if a spouse exercises full control.
Key Considerations
• Forfeiture: A court may order a spouse to forfeit benefits due to a short marriage, serious misconduct, or unreasonable benefits.
• Pension Interest: Defined as a part of the matrimonial estate, allowing the non-member spouse a share of the fund.
• Immovable Property: If a house is sold to settle a divorce, Transfer of immovable property following divorce notes that transfer duties might be exempted if the property is transferred between spouses.
• The Division of assets in a divorce guide provides further details on how courts treat joint estates.
Legal Context
• Matrimonial Property Act (1984): Introduced the accrual system, ensuring the sharing of economic growth during the marriage.
• Women's Property Rights: Rural women often face challenges in securing their 50% share of property, often due to tradition or lack of access to legal resources.
• International Standards: Article 7 of the Protocol to the ACHPR advocates for fair and equitable division of property upon divorce, emphasizing equality.
• Trust Abuse: The use of trusts as a "sham" to shield assets is not protected, particularly if the trust is simply an alter ego of a spouse.
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