South African Law is not fault based, and the division of assets on divorce is based on your marital system. Your spouse cannot take everything that you own in a divorce. Phrases like “she took him to the cleaners,” or “he bled her dry,” are often used by people in general conversation about divorce, but they miss the mark and are far from the truth.
You tend to get what you agreed to before getting married.
However, most divorces get settled, either before the summons been issued, some after litigation and some on the day of trial on the Court Steps. Settlement takes place when the parties reach consensus, and they then sign a settlement agreement.
With a settlement agreement, you have free reign to distribute the assets as you wish. You can, for example, decide to keep the immovable property while your spouse keeps the business even if this is different from the Marital Regime that you selected before marriage.
People select their marital system before getting married. It is imperative to understand the consequences of the different systems in place. The law gives effect to the marital regime selected by the Parties.
There are a few exceptions to the above which may cause a different outcome on the results of the Marital System chosen such as forfeiture, redistribution claims and spousal maintenance – these claims however assist with a more equitable distribution of assets.
Forfeiture claims must be asked for in a summons and will not automatically be granted by the Court. An example where a person can succeed with a claim for forfeiture is where the one Party is a Billionaire that gets married to someone with no assets. Within 3 months they decide to get a divorce. The Billionaire should succeed with the claim for forfeiture as the other spouse did not contribute to the estate in the same manner as the Billionaire.
With redistributions of assets, the Court will look at Parties that were married before 1 November 1984. The one Party, usually the women had no proper protection in divorce matters if they got married before the 1 November 1984 and at that stage that one Party was at a substantial financial disadvantage. Parties that got married before this date have protection after the enactment of the Matrimonial Property Act 88 of 1984 as the Court can (and will) order redistribution of assets.
The duty of spousal maintenance can arise in accordance to a written agreement between the Parties or when a Court, when granting a decree of divorce, makes an order that the one spouse must pay spousal maintenance to the other Party.
We deal extensively with the Marital Regimes on our website, and you can view this to understand the different marital regimes better.
In short, if you are married In Community of Property, there is only one estate between you and your spouse, and this one estate gets divided equally between the Parties.
If you are married in terms of an Antenuptial Contract Without Accrual, it means that your property belongs solely to you and your spouse's estate belongs exclusively to them.
If you are married in terms of an Antenuptial Contract with the Inclusion of the Accrual on the dissolution of the marriage by death or divorce, the value of the assets obtained during the marriage (the accrual) will be shared equally (mostly) between the Parties.