Asked by the Customer on 28-10-2021 13:19:53
Question posted in the Divorce Law category relating to Gauteng

Dear Lawyer,

I have been married out of community of property with accrual to my wife since February 2021. Things are falling apart and we are thinking of divorce. I have come to known that she suffers from bipolar disorder. Which assets will be divided between us should we come to get a divorce? I have my own company which was established in 2007. Will she only be entitled to what we build up together from the date we got married? For instance the balances that our pension funds were on that date till now?

Further information relating to Question:

I do have an antenuptial contract I can send for you to see.

Posted by Att. Patrick on 28-10-2021 13:57:05

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

Please keep in mind that our discussions is for general information purposes only. Our engagement on this website does not create an attorney-client relationship. 

Do you mind if I take a moment to review your question? I will come back to you shortly!

Att. Patrick

Thank you.

Posted by Att. Patrick on 28-10-2021 14:05:30

Since you are married out of community of property with accrual, each of you would have retained ownership of each of your own assets, and debts, that you had before the marriage. So, there is no "joint estate" which you share in. You each have your own estates which you own. 

After you get married, each of you would continue to build up your own separate estates, for your own benefits, and each of you would incur your own debt, for your own estate. 

So, on divorce, you would leave the marriage with whatever assets you have at that point in time. 

Q: Which assets will be divided between us should we come to get a divorce? --> Only those assets which you bought together, and for which you paid together. Because those would then be shared assets, and you would need to share them between the two of you. e.g. you both put in R3000 to buy a R6000 TV. Now you must share it. But if you both went to the shop and you paid R6000 for a TV, then technically it is your TV.

Q: I have my own company which was established in 2007. Will she only be entitled to what we build up together from the date we got married? --> No. Definitely not. The shares in your company would form part of your personal estate. And since you are married out of community of property, you are still the sole owner of the shares. She has no claim against the shares, or any company assets. 

Q: For instance the balances that our pension funds were on that date till now? --> Nope, not directly.

HOWEVER, "with the accrual" means that there will need to be a financial calculation done by you guys. What you do is, firstly, you work out how much your personal estate has increased in value since you got married. Perhaps the increase is R50,000 (?) just to put a number on it. Then, you work out how much her personal estate has increased in value since you got married. Perhaps, let's say R0. 

She would then have a monetary claim against you for 1/2 of the difference. i.e. 50% of R50,000.

This accrual helps balance things out, and helps to keep things fair. So, if your company's value doubled, she would not have a claim directly against the company or the shares, but that value (since you own the company) would go towards increasing the value of your estate, and therefore it would be taken into account in the calculation of the accrual.

If your estate increased by R50,000 and her estate increased by R50,000 ... then nobody would have any accrual claim. 

Thank you, that gives me better clarity, every month I pay her R2800 to pay of debt that she owns. Will this have an impact?

So basically at the end of the day there is no I take this and you take this. Only estate calculations and then a claim to be paid? What I bought stays mine and what she bought with her money stays hers. What about investments?

Posted by Att. Patrick on 28-10-2021 15:04:12

Yes, because that amount reduces the growth in your estate, and increases the growth in her estate. So either this will reduce any accrual claim which she might have against you, or it might mean that you could have an accrual claim against her. 

Q: So basically at the end of the day there is no I take this and you take this. Only estate calculations and then a claim to be paid? --> Yes. But you each take your own things.

Q: What I bought stays mine and what she bought with her money stays hers. --> Yes.

Q: What about investments? --> Investments are simply assets in your estate. So if your investment has increased in value by R100,000, then that increase will be taken into account in the calculation of the accrual ... UNLESS you excluded the investment as an asset in the ANC contract.  

And what happens should we have kids?

Posted by Att. Patrick on 28-10-2021 15:15:21

That's a whole separate story, but both parties are required to maintain the kids to their ability. You can't get out of this obligation. If you couldn't agree on the maintenance to be paid (assuming that the kids will live with her) then she would go to court to get a maintenance order for the kids. 

If I get the divorce laywer to set the divorce in motion, I know I will be the one responsible for the divorce fees. What if she suddenly decides not to divorce?

Posted by Att. Patrick on 28-10-2021 15:23:26

What you guys must do is to sign a consent paper which settles the divorce. Then, you apply to court for a divorce incorporating the terms of the consent paper. You could say in the summons that if she doesn't defend the divorce, then there will be no claim against her for costs, but if she does defend the divorce, then you want to claim costs from her.