1. Marriage In Community of Property
When a couple get married without entering into an Antenuptial Contract, they are automatically married In Community of Property. This means that the assets of both spouses fall into one combined estate from the moment they are married. This includes the assets they own at the time of the marriage and any assets acquired by either spouse during the marriage., each spouse owns an in the combined estate. It makes no difference who earns more or who buys the assets, the spouses are equal shareholders in the combined estate.

Should the parties get divorced, then (apart from in exceptional circumstances) this means that all the assets of the combined estate must be valued, and each spouse must get 50% of the total.

 

Sometimes divorcing spouses will agree on how the estate is to be divided between them. Certain assets may have to be sold (like the home); others, simply divided up (such as furniture).

 

But what if on how to divide up the estate; what if both spouses want the common home, for instance?When the parties can’t agree on how the estate is to be divided up, who will sell off all the assets of the estate, pay any debts of the estate, and divide the remaining funds equally between the spouses.

 

Forfeiture of Benefits:

There is one important exception to the rule that spouses married in community of property share the combined estate 50 / 50 on divorce. This exception is called "forfeiture of benefits", and it provides that in certain circumstances, one spouse will be awarded a greater share of the combined estate, or even 100% of the combined estate. In making such an award, the court takes into account the following three factors:

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1. The duration of the marriage

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2. The circumstances which gave rise to the break-down of the marriage; and

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3. The substantial misconduct on the part of a spouse

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Let’s take an example:  Say a couple has been married for only three or four years.  One spouse is extremely abusive towards the other; he/she goes out partying with friends every night; he/she has an affair and is a drug addict to boot.

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In such circumstances, the court will probably order the wayward spouse to forfeit the benefits he or she should have received - either a percentage thereof or even 100% thereof.  In other words, the badly behaved spouse may only get 20% or 30% of the combined estate, or even 0%.

 

2. Marriage Out of Community of Property (without the Accrual System).

The only alternative to being married in community of property is being married with an Antenuptial Contract (“ANC”).

 

The ANC is a contract entered between spouses before the marriage and it regulates the proprietary aspects of the marriage. Essentially, the ANC states that each spouse has their own separate estate, that is, each has their own property and their income falls into their own estate.

 

If the parties, then, upon divorce, each party simply retains what they have accumulated in their personal estates during the course of the marriage, irrespective of whether a spouse worked or not, or how long the marriage has lasted or how the spouses have treated each other. Of course, the spouses may have, such as the home, and there may be major disputes about how to divide such assets or even who is the real owner of such assets.

  

3. Marriage Out of Community of Property (including the Accrual System)

If the parties included the accrual system in their ANC then on divorce the outcome is very different from the parties who excluded accrual.

 

During the marriage, as with the marriage excluding accrual, each spouse has their own separate estate. However, on divorce, the law states the spouse whose estate has grown the least during the marriage has a claim against the spouse whose estate has grown the most. This claim is calculated in the following somewhat complicated way:

 

At the time of marriage, each spouse calculates the value of the assets in their estate.  This figure is recorded in the ANC, and is called “the initial value”.  At the time of the divorce, one again calculates the value of each spouse’s estate.  This value is then compared with their initial value.  The difference between these two values represents the growth (or accrual) in a party’s estate. The party that has the smaller accrual in his/her estate has a claim against the party who has the greater accrual.  To calculate the amount of the claim one subtracts the value of the smaller accrual from the value of the larger accrual - and then divides that figure by 2.  This is the amount of the claim the party with the smaller accrual has against the party with the larger accrual.