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Community of Property

Community of Property

Divorce procedure in Community of Property in South Africa

 

Here’s a breakdown of the divorce procedure in community of property in South Africa:

Community of Property:

When married in community of property (ingemeinschaft van goedere), all assets and liabilities acquired during the marriage belong jointly to both spouses. Upon divorce, the estate is divided equally.

The Process:

  1. Initiate the Application:
    • Consult a lawyer specializing in family law. They can guide you through the process, represent you in court, and ensure your rights are protected.
    • You (the applicant) file an application with the High Court or a Regional Court division of the Magistrate’s Court in your area. This application includes:
      • Summons outlining the reason for divorce and your details.
      • Statement of claim specifying the grounds for divorce and your proposals regarding:
        • Division of assets and liabilities (considering the community of property).
        • Child custody and maintenance (if children are involved).
  2. Serve the Summons:
    • The Sheriff of the court delivers the summons to your spouse (the defendant).
  3. Contested vs. Uncontested:
    • Uncontested Divorce: If your spouse agrees with everything in the statement of claim, including the division of assets, it’s a smoother process. Negotiations on an agreement can occur, followed by an uncontested court hearing to finalize the divorce.
    • Contested Divorce: If your spouse disagrees with any aspect of the claim, the court will hold hearings to hear arguments from both sides. They will then make a ruling on the disputed issues, including the division of assets. This process can be lengthy and complex.
  4. Financial Disclosure:
    • Both parties must disclose their financial positions in detail. This includes:
      • Listing all assets and liabilities of the estate (property, debts, investments, etc.).
      • Providing valuations for significant assets like houses or businesses.
    • This information is crucial for the court to determine a fair division of the estate.
  5. Settlement or Court Order:
    • Ideally, spouses reach an agreement on all aspects through negotiation or mediation.
    • If no agreement is reached, the court issues a court order detailing the division of assets, child custody arrangements (if applicable), and any spousal maintenance.
  6. Decree of Divorce:
    • Once the court is satisfied with the division of assets and any other settlements, they grant a Decree of Divorce, officially dissolving the marriage.

Additional Points:

  • There’s a mandatory waiting period of at least one month after the summons is served before the court can grant the divorce.
  • Legal aid may be available for those who qualify financially.
  • Consider mediation to reach an agreement with your spouse on asset division, especially for complex situations.

Importance of Legal Representation:

A lawyer experienced in family law can significantly impact your divorce proceedings, particularly in community of property. They can:

  • Ensure a fair division of assets based on the community of property rules.
  • Handle complex financial disclosure and asset valuation.
  • Represent you effectively in court during contested divorces.

Remember, this is a general overview. Consulting a qualified family law professional is crucial for navigating the legalities and protecting your interests during a divorce in community of property.

 

 

What happens to the pension fund in community of property divorce?

 

In South Africa, when a couple married in community of property divorces, the pension fund accrued during the marriage is considered a joint asset. Here’s how the pension fund is typically handled in such a divorce settlements:

Member Spouse and Non-Member Spouse:

  • Member Spouse: The spouse who participates in the pension fund is referred to as the member spouse.
  • Non-Member Spouse: The other spouse is the non-member spouse.

Division of the Pension Interest:

  1. Valuation: The value of the member spouse’s pension interest is determined on the date of divorce. An actuary typically performs this valuation, considering factors like the member spouse’s age, salary, and the specific pension fund rules.
  2. Splitting the Value: Generally, the non-member spouse is entitled to claim half of the value of the member spouse’s pension interest accrued during the marriage.
  3. Payment Options for Non-Member Spouse: The non-member spouse has a few options for receiving their share of the pension interest:
    • Cash Lump Sum: They can opt for a cash lump sum payout from the member spouse’s pension fund. This amount is usually taxed as income for the non-member spouse.
    • Transfer to Another Fund: They can choose to transfer their share to another approved retirement fund. This option allows the non-member spouse to benefit from future growth within the new fund.
    • Deferred Pension: In some cases, the non-member spouse might elect to receive their share as a deferred pension, meaning they would start receiving payouts at their retirement age.

Role of the Divorce Order:

  • A court order plays a crucial role in formalizing the division of the pension interest. The order specifies the amount awarded to the non-member spouse and their chosen method of receiving it (cash lump sum, transfer, or deferred pension).
  • The court order is then submitted to the member spouse’s pension fund administrator, who will handle the disbursement according to the order’s instructions.

Important Points:

  • Member Must Be Employed: The non-member spouse can only claim a share of the pension interest if the member spouse is employed and actively contributing to the fund at the time of the divorce. If the member spouse has already resigned or retired and received a payout, there’s no longer a “pension interest” to be divided.
  • Legal Representation: Consulting a lawyer specializing in family law is crucial, especially in cases involving pension funds. They can:
    • Advise on the specific legalities and applicable calculations.
    • Help gather necessary documents and valuations.
    • Negotiate a fair settlement regarding the pension fund division.
    • Ensure the divorce order accurately reflects the agreed-upon terms.

Conclusion:

In a community of property divorce, the member spouse’s pension interest is considered a shared asset, and the non-member spouse is entitled to a portion of its value accrued during the marriage. A lawyer can ensure a smooth and fair division of this important asset in your divorce settlement.

 

 

How to check if you are married in community of property

 

In South Africa, there are two main ways to determine your marital property regime:

  1. Marriage Certificate:
    • Presence of Antenuptial Contract (ANC) Annotation: If your marriage certificate has an annotation (special note) indicating an antenuptial contract was signed, then your marriage is out of community of property. This means you have a separate estate from your spouse, and assets or debts acquired during the marriage are not automatically shared.
    • No Annotation: If there’s no such annotation on your marriage certificate, by default, your marriage is in community of property. This is the most common marital regime in South Africa unless a prenuptial agreement was established. In this case, all assets and liabilities acquired during the marriage are considered joint.
  2. Department of Home Affairs (DHA):
    • Limited Accessibility: The DHA doesn’t maintain a central registry specifically for recording marital property regimes.
    • Marriage Certificate Copy: While the DHA might not have a dedicated record of your marital property regime, they issued your marriage certificate. If you have a copy of your marriage certificate, you can check for the ANC annotation as mentioned in point 1 above.

Here’s a recommendation based on the above:

  • Check Your Marriage Certificate: Look for the presence or absence of an ANC annotation. This is the most straightforward method.
  • Contact the Lawyer Who Drafted Your ANC (if applicable): If you have an ANC, contact the lawyer who helped draft it for confirmation. They likely have a copy of the agreement in their records.
  • Consult a Lawyer: A lawyer specializing in family law can advise you definitively on your marital property regime based on your specific circumstances. They might recommend requesting a confirmation from the DHA (even though they don’t have a dedicated registry), but this process might not be as efficient or conclusive.

Remember:

The presence of an ANC is crucial for determining if your marriage is in or out of community of property. If you are unsure and cannot find a clear answer through your marriage certificate or an ANC, consulting a lawyer is the recommended course of action.