Whilst in the throes of an acrimonious separation, a person can’t be blamed for wondering if the wrongful actions of their spouse will be in their favour when a court decides on the proprietary consequences of a divorce.
However, the notion that a spouse may lose their claim in a joint estate due to adultery or other wrongdoing is false. In South Africa, we have a “no-fault” divorce system. This essentially means that irrespective of the behaviour of either spouse, the proprietary consequences of a divorce will remain unaffected.
How are the proprietary consequences of a divorce decided upon? The decision regarding “who gets what” when getting divorced is governed by the marital regime entered into by the parties at the time of their marriage.
In the case of a marriage in community of property, the marital estate belongs to both parties equally and therefore has to be divided in half between the parties. In the case of a marriage out of community of property, it has to be asked if there is an antenuptial agreement between the parties, also known as a “prenup.”
In the event of an antenuptial agreement having been concluded, it will have to be assessed which one of the spouse’s estates grew more during the course of the marriage. The party whose estate grew less will be entitled to half of the growth of the other party. Lastly, in the case of a marriage out of community of property, neither party will have a claim to the other’s estate at the time of divorce.
There is rarely a time when divorce should be “hashed out” in court. If both spouses are amenable to a mature and frank discussion regarding their respective claims, mediation between the parties should be the first explored avenue.
An article written by Clara Bester.
