How does divorce work if you are married in community of property?

If you married without signing an antenuptial contract, you are almost certainly married in community of property. It is the default system in South African law. On divorce, everything you own and everything you owe goes into one pot called the joint estate, and the net value is divided equally. Each of you walks away with half, unless the court orders that one of you forfeits part of your share because you would otherwise be unduly benefited. Your pension interest is part of the pot. So is every debt in either of your names.

This guide is part of our Divorce in South Africa: the complete guide, which links every guide on the topic.

That is the whole rule in one paragraph. The rest of this guide is about how it works in practice, what can change the equal split, and how to protect yourself while the divorce runs.

What community of property means

From the day you married, you stopped having separate estates. The house, the cars, the furniture, the savings, the business, the credit card, the personal loan: all of it belongs to the joint estate in undivided half shares, whoever's name is on the paper. The Matrimonial Property Act 88 of 1984 governs the system and requires each spouse to get the other's consent for certain major transactions, such as selling the house or borrowing against it, but day to day the estate simply grows and shrinks as a single unit.

A few things fall outside the joint estate. An inheritance or gift that the giver expressly said must be excluded stays separate. So do certain damages for personal injury. Everything else is joint.

The Divorce Act 70 of 1979 provides for the division on divorce and for forfeiture. The court does not divide the estate itself in most cases. It grants the divorce, records the settlement or orders division, and leaves the actual carving up to the spouses or, if they cannot agree, to a receiver or liquidator appointed to do it.

How the division works, step by step

Step one: list everything. Assets on one side, debts on the other, at current values. Include the pension interest of each spouse, which is broadly the benefit each of you would have received had you resigned from your fund on the date of divorce.

Step two: work out the net. Total assets less total debts is the net joint estate. Half of that is what each spouse is entitled to.

Step three: settle or litigate. In an uncontested divorce you sign a settlement agreement setting out who takes which asset, who pays which debt, and how any imbalance is corrected with a cash payment. The court makes that agreement an order. In a contested divorce the court orders division and may appoint a receiver.

Step four: deal with the pension. The court can order the pension fund to pay the non-member spouse's share of the pension interest directly, or to transfer it to another fund. The order must name the fund and state the share clearly, or the fund will not act on it.

Step five: deal with the creditors. Creditors are not parties to your divorce. If you agree that your spouse takes over the personal loan, that binds the two of you but does not release you from the bank unless the bank agrees. This is the trap that catches people years later.

A worked example

Take a made-up couple. Pieter and Anele married twelve years ago without an antenuptial contract. They have no children together. The figures below are round numbers for illustration only. Values in a real case are set by valuations and statements on the date of divorce.

Their joint estate is:

• the house, valued at R1 200 000, with R700 000 owing on the bond
• Pieter's pension interest of R500 000
• Anele's pension interest of R150 000
• two cars worth R150 000 together, with R90 000 owing on finance
• savings of R60 000
• a credit card balance of R40 000 and a personal loan of R60 000

Assets total R2 060 000. Debts total R890 000. The net joint estate is R1 170 000, so each spouse is entitled to R585 000.

They agree that Anele keeps the house and takes over the bond, giving her R500 000 in net value. She keeps her own pension interest of R150 000 and the savings of R60 000, bringing her to R710 000. Pieter keeps his pension interest of R500 000, both cars net of finance at R60 000, and takes on the credit card and personal loan, which reduces him to R460 000. To balance, Anele pays Pieter R125 000, which she raises by increasing the bond. Each ends at R585 000.

If they could not afford to balance in cash, the alternative would be an order against Pieter's pension fund, paying Anele a portion of his pension interest, or selling the house and splitting the proceeds.

Now change one fact. Suppose Pieter emptied the savings account into gambling in the final year of the marriage. Anele could ask the court for a forfeiture order, arguing that Pieter would be unduly benefited if he still took half of what remained. If the court agreed, it could order that he forfeit part of his half share. Whether it would agree depends on the facts, and nobody can promise the outcome.

What to do this week

1. Write down every asset and every debt you know of, in both names, with approximate values.
2. Get a statement of your own pension interest from your fund, and ask your spouse for theirs.
3. Pull your credit report so you know what debt exists in your name.
4. Stop signing for new credit, and do not sell or give away joint assets. Both can be used against you.
5. Gather bank statements for the past twelve months.
6. Read who gets the house in a divorce if the home is the main asset.

Documents to gather

• your marriage certificate, and confirmation that there is no antenuptial contract registered against your names
• the title deed and latest bond statement
• pension or provident fund statements for both spouses
• vehicle registration papers and finance statements
• bank statements, investment statements and policy schedules
• credit card, loan and store account statements
• financial statements for any business either of you owns
• proof of any inheritance or gift that was expressly excluded

A realistic timeline

If you agree on everything, an uncontested divorce in the Regional Court can be finalised within a few months of issuing summons, and the pension fund usually pays out or transfers within a few months after receiving the order. See how long does an uncontested divorce take. A contested division, with a receiver appointed to sell assets, can run for a year or more, and the receiver's fees come out of the estate before either of you gets a cent.

Common mistakes and what they cost

Assuming the debt in your spouse's name is their problem. It is joint. If your spouse defaults on a personal loan taken during the marriage, the bank can look to you.

Forgetting the pension. The pension interest is often the largest asset. Leaving it out of the settlement means giving up half of it.

Agreeing that one spouse "takes over" a debt without involving the creditor. Years later the bank sues you for a debt you thought was gone. Get a written release or refinance the debt into one name.

Stripping assets before the divorce. Moving money to a relative or selling a car cheaply to a friend can support a forfeiture claim against you and destroys your credibility.

Signing a settlement you do not understand. Once it is a court order, it is very hard to undo. If in doubt, pay for one hour of advice before you sign.

What the court weighs

The starting point is equal division, and in most divorces that is also the end point. The court only departs from it through forfeiture, and forfeiture is not a punishment for a bad marriage. The question is whether one spouse would be unduly benefited in relation to the other if the equal split stood. In deciding that, the court looks at how long the marriage lasted, the circumstances that led to its breakdown, and any substantial misconduct by either spouse. A short marriage where one spouse brought in almost everything, or a marriage where one spouse squandered the estate, are the typical cases. Ordinary unhappiness, or an affair, will not usually be enough on its own.

Where there are children, the division of property is separate from their care and maintenance. The Children's Act 38 of 2005 governs the children's arrangements, the best interests of the child come first, and the Family Advocate must endorse those arrangements before the divorce is granted.

If you cannot afford an attorney

An uncontested divorce can be done without an attorney in the Regional Court, using the court's forms and a personal appearance. See how to get a divorce without a lawyer. The court fees calculator gives an illustrative view of the sheriff and court costs involved. Legal Aid South Africa on 0800 110 110 applies a means test and takes on some divorces, and university law clinics in the larger centres run divorce clinics for free. For what a private attorney might charge, see what family law costs.

If there is violence in the marriage, a protection order is a separate free process at the Magistrates' Court. The GBV Command Centre on 0800 428 428 can help you plan, and in an emergency call SAPS on 10111.

Frequently asked questions

People ask whether they can keep an inheritance received during the marriage. Only if the will or the giver expressly excluded it from the joint estate. Otherwise it fell into the pot the day you received it.

Many ask what happens to a business one spouse built. It is a joint asset like any other. Its value on the date of divorce is included, and the spouse who runs it usually keeps it and compensates the other with other assets or cash.

Spouses often ask whether they can change to a different property system before divorce to protect assets. Changing your matrimonial property system needs a High Court application, notice to creditors and a proper reason. It cannot be used to strip your spouse of an existing half share.

People also ask whether the equal split applies if one spouse never worked. Yes. Community of property does not ask who earned the money. The spouse who kept the home has a half share of the estate.

Finally, people ask about the antenuptial contract they wish they had signed. It is too late once you are married, short of a High Court application, but if you remarry, read what is an antenuptial contract and do I need one first.