What Every Woman Should Know About Divorce Settlements 

Divorce can be a daunting process, especially when it comes to understanding what each spouse is entitled to in a settlement. In South Africa, a wife’s entitlements during a divorce depend on various factors, including the marital property regime and specific circumstances of the marriage. At Burger Huyser Attorneys, we are here to demystify the process and provide guidance to ensure fair outcomes.

1. The Role of the Marital Property Regime

The division of assets in a divorce is primarily determined by the marital property regime chosen by the couple. South Africa recognises three main regimes:

  • In Community of Property:
    • All assets and debts acquired by either spouse during the marriage form part of a joint estate.
    • Upon divorce, the wife is entitled to 50% of the joint estate, including property, savings, investments, and other assets.
  • Out of Community of Property with Accrual:
    • Each spouse retains ownership of the assets they brought into the marriage.
    • The wife is entitled to a share of the accrual (growth) in the estate accumulated during the marriage. The accrual system aims to ensure equitable distribution of wealth acquired during the marriage.
  • Out of Community of Property without Accrual:
    • Each spouse retains their separate assets and liabilities.
    • In this regime, the wife may not have a claim to her husband’s assets unless agreed upon in a prenuptial agreement or through spousal maintenance claims.

2. Spousal Maintenance (Alimony)

A wife may be entitled to spousal maintenance under specific circumstances, particularly if she was financially dependent on her husband during the marriage. The court considers factors such as:

  • The duration of the marriage.
  • The wife’s financial needs and the husband’s ability to pay.
  • The wife’s age, health, and ability to re-enter the workforce.

Maintenance can be awarded as a lump sum, periodic payments, or both, depending on the circumstances.

3. Child Maintenance

If the couple has children, the wife may also receive child maintenance. Both parents are legally obligated to support their children financially. Factors considered include:

  • The child’s needs, such as education, healthcare, and general living expenses.
  • The wife’s caregiving role and financial contribution.
  • The husband’s income and financial capacity.

4. Pension Fund Division

If the couple is married in community of property or with accrual, the wife may be entitled to a portion of her husband’s pension fund. The Pension Funds Act allows for a “clean break principle,” enabling immediate access to the allocated share upon divorce. This can be taken as a cash payout or transferred to a retirement account.

5. Additional Divorce Considerations

Other factors that may influence what a wife is entitled to include:

  • Prenuptial or Postnuptial Agreements: These agreements can outline specific asset divisions and entitlements.
  • Contributions to the Marriage: Non-financial contributions, such as raising children or managing the household, are considered in the division of assets.
  • Mediation and Settlement Agreements: Couples can negotiate terms outside of court to reach a mutually acceptable settlement.

6. Steps to Protect Your Rights as a Divorcing Wife

If you are facing a divorce, here are some steps to ensure your entitlements are secured:

  • Consult an Attorney: Legal guidance is crucial to understanding your rights and negotiating a fair settlement.
  • Gather Financial Records: Documentation of assets, liabilities, and income will support your claims.
  • Consider Mediation: Mediation can be a cost-effective way to resolve disputes and avoid lengthy court proceedings.

Contact Burger Huyser Divorce and Spousal Maintenance Attorneys

At Burger Huyser Attorneys, we understand the complexities of divorce and are committed to helping our clients achieve equitable outcomes. Whether you need assistance with asset division, maintenance claims, or negotiating a settlement, our experienced family law team is here to support you every step of the way. Contact us today for a confidential consultation and let us guide you toward a fair resolution that protects your rights and future.

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