Divorce Battles: Who Gets What and How to Avoid a War
Divorce is rarely simple, and when emotions run high, dividing assets can feel like a battle. Who gets the house? What happens to joint bank accounts? How do you fairly divide a business? In South Africa, the way assets are split depends largely on the marital regime the couple chose when they tied the knot.
There are three main marital regimes: in community of property, out of community of property with accrual, and out of community of property without accrual. If you are married in community of property, all assets and debts are shared equally. This means that, in a divorce, everything is split 50/50, regardless of who earned more or who contributed what. This often leads to complications, especially when one party feels they did more to accumulate wealth.
For couples married out of community of property with accrual, things work a little differently. Each spouse keeps the assets they brought into the marriage, but whatever they built together during the marriage is split fairly. This is often seen as the most balanced system, as it protects both partners while allowing them to share in their mutual financial growth.
Then there’s the out of community of property without accrual system, where each person keeps their own assets, both before and during the marriage. In this case, unless one spouse contributed directly to the other’s financial growth (such as by supporting them through medical school or investing in their business), they leave the marriage with what is in their name and nothing more.
One of the most contentious parts of any divorce is deciding who gets what, especially when children are involved. Custody battles often influence financial negotiations, as one parent may seek primary residence of the children while also claiming maintenance. The South African courts prioritise the best interests of the child, ensuring that financial arrangements do not leave them at a disadvantage.
A well-known South African divorce case that highlighted asset division complexities is the 2012 case of Botha v Botha, where the Supreme Court of Appeal clarified how the accrual system should be calculated when one party had significantly more assets than the other. The ruling reinforced the principle that the accrual system aims to ensure a fair division without punishing or unfairly enriching either spouse.
To avoid a drawn-out and costly divorce battle, couples are encouraged to seek legal mediation rather than relying on the courts. Mediation allows both parties to negotiate fairly, reach compromises, and avoid unnecessary hostility. Litigation, on the other hand, often prolongs the process and increases legal fees.
Divorce is difficult, but understanding your rights and obligations can prevent unnecessary conflict. The key to a smoother separation is preparation, clear agreements, and, when necessary, strong legal guidance. Whether through mediation or court proceedings, ensuring fairness and protecting both parties’ financial futures should always be the goal.