One of the most common fears during divorce is that one spouse will “take everything.” In South African law, that is usually not how it works. The division of assets is determined primarily by the marital regime that applies to the marriage, together with any settlement agreement or court order that may be made during the divorce process. In other words, the outcome depends on the legal framework of the marriage, not on who is more to blame for the breakdown of the relationship.
Settlement Agreements Can Shape the Outcome
Many divorces are finalised through a settlement agreement. If both parties reach consensus, they can record how assets, liabilities and other financial issues will be dealt with, and that agreement can then be made an order of court. This gives spouses considerable flexibility. For example, one party may keep the family home while the other retains a business interest or other investments, even if that arrangement differs from the default consequences of the marital regime.
Your Marital Regime Matters Most
In most cases, the court will start with the marital regime the spouses chose before getting married. South African law generally recognises three main systems: marriage in community of property, marriage out of community of property without accrual, and marriage out of community of property with accrual. While these systems set the starting point for how assets are divided, there are important exceptions that may affect the final outcome, including forfeiture claims, redistribution claims and spousal maintenance. [Matrimonial Property Act 88 of 1984]() introduced the accrual system, and the [Constitutional Court]() later expanded the scope of redistribution claims in certain out-of-community marriages.
Forfeiture Is Not Automatic
A forfeiture order must be specifically requested from the court. It is not granted automatically simply because one spouse feels the result is unfair. In broad terms, a forfeiture claim asks the court to prevent one spouse from receiving a benefit that would be unjust in the circumstances. This can become relevant where the marriage was very short, where one party made little or no contribution to the joint estate, or where the facts strongly support limiting that spouse’s claim.
Redistribution Claims Have Evolved
Historically, redistribution claims were mainly associated with marriages out of community of property without accrual that were entered into before 1 November 1984. However, that position changed significantly after the 2023 judgment of the [Constitutional Court]() in EB v ER and KG v Minister of Home Affairs, which found that limiting redistribution in this way was unconstitutional. The result is that redistribution may now be available more broadly in appropriate cases, but it is still not automatic. A spouse who seeks such relief must ask for it and prove why a transfer of assets would be just and equitable.
Spousal Maintenance May Also Be Part of the Picture
Spousal maintenance can arise through a written settlement agreement or through a court order. Whether maintenance is appropriate depends on the facts of the marriage, the financial circumstances of the parties, and what can be shown to be fair. Because divorce outcomes can differ greatly depending on the marital regime and the evidence available, obtaining legal advice early is often essential.
Quick Summary of the Three Main Marital Regimes
· In community of property: Both spouses share one joint estate, and assets and debts are generally divided equally on divorce unless a court orders otherwise.
· Out of community of property without accrual: Each spouse keeps a separate estate, and there is generally no sharing of growth in assets unless there is a settlement or a court grants further relief.
· Out of community of property with accrual: Each spouse keeps a separate estate during the marriage, but the growth in their estates is shared according to the accrual calculation when the marriage ends.
