What is a Community of Property Marriage Divorce?

Divorce is not only an emotional journey but also a financial one, especially when dealing with assets such as property and pension funds. In South Africa, the marital property regime plays a critical role in determining how assets, including pensions, are divided during a divorce. At Burger Huyser Attorneys, we understand the complexities surrounding community of property divorces and pension claims. 

A community of property marriage is the default marital regime in South Africa unless the couple signs an antenuptial contract (ANC) before getting married. Under this regime:

  • All assets and liabilities of both spouses are pooled into a joint estate.
  • Both spouses have equal ownership of the joint estate, regardless of who acquired the assets or incurred the debts.

This equal ownership extends to retirement funds and pensions accrued during the marriage.

Below, we explore common questions about how assets and pensions are divided under this regime.

1. Can My Wife Claim Half of My Property in South Africa?

If you are married in community of property, your spouse has a legal claim to half of the joint estate, which includes all property and assets acquired during the marriage. This applies to:

  • Real estate
  • Bank accounts
  • Investments
  • Retirement savings and pension funds

Upon divorce, the joint estate is divided equally between the two parties. This means your wife can claim 50% of the property and assets unless otherwise agreed upon in a settlement.

2. Can a Divorced Woman Collect Her Ex-Husband’s Pension?

Yes, a divorced spouse can claim a portion of their ex-spouse’s pension fund under certain circumstances:

  • If you were married in community of property, the pension fund is considered part of the joint estate.
  • The Pension Funds Act allows for a “clean break principle,” enabling the non-member spouse to access their share of the pension fund immediately after the divorce is finalized.

The exact portion of the pension that the ex-spouse is entitled to depends on the division of the joint estate, typically 50% unless otherwise agreed or ordered by the court.

3. How is the Pension Fund Divided?

The division of a pension fund in a community of property divorce is governed by the Divorce Act and the Pension Funds Act. Here’s how it works:

  • During divorce proceedings, the court will issue a decree specifying the non-member spouse’s entitlement to a portion of the pension fund.
  • The pension fund administrator calculates the exact amount based on the terms of the decree and transfers the entitlement to the non-member spouse.
  • The non-member spouse may choose to receive the amount as a cash payout (subject to tax) or transfer it to a retirement savings account.

4. Are There Exceptions?

In some cases, the division of assets, including pension funds, may differ:

  • Antenuptial Contracts (ANC): If the couple is married out of community of property with or without accrual, the pension fund may not form part of the joint estate.
  • Settlement Agreements: The couple may agree on a division of assets that deviates from the default 50/50 split.
  • Court Orders: A court may issue specific orders based on the unique circumstances of the case.

5. Protecting Your Financial Interests

If you are facing a divorce under the community of property regime, it is crucial to understand your rights and obligations. Steps you can take include:

  • Consulting with a family law attorney to assess your situation.
  • Gathering all relevant financial documents, including pension fund statements.
  • Considering mediation or negotiation to reach an amicable settlement.

Seek Expert Legal Advice with Experienced Divorce Attorneys

At Burger Huyser Attorneys, we specialise in family law and are dedicated to helping our clients navigate the complexities of divorce, including the division of property and pension funds. Whether you are the member spouse or the non-member spouse, we provide tailored advice to ensure your financial interests are protected.

Contact us today for a confidential consultation and let our experienced team guide you through this challenging time with clarity and professionalism.

Contact Burger Huyser Attorneys, and book a consultation.

To speak to one of our experienced attorneys in South Africa for immediate assistance, contact us on the numbers below:

Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358;  Pretoria call 064 548 4838;

Centurion call 061 516 7117; Alberton call 061 515 4699; Bedfordview call 061 536 3223

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE