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CaseLaw
CaseLaw, Attorney
Category: South Africa Law
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Experience:  BCom; LLB; Masters in Law
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I married in community of property and now I want a divorce.

Resolved Question:

I married in community of property and now I want a divorce. what are my chances of getting out of my marriage with everything that belongs to me or is it possible that I get a free divorce and keep everything that is in my name
Submitted: 7 years ago.
Category: South Africa Law
Expert:  CaseLaw replied 7 years ago.
Hi Mafundi,

If you were married In Community of Property then when you were married your individual estates were joined together, merged into one single estate in which you owned 50% of it, and he owned 50% of it ... each owning effectively 50% of you, as well as his assets.

When you get divorced you would be entitled, by law, to 50% of everything that used to be his, and he would be entitled to 50% of everything that was yours. The joint estate would effectively be split into half.

The only way to do what you want to do is by agreement.

You both would have to sign a consent paper (which would, by agreement, divide the joint estate - who gets what - what each party needs to pay to the other - who keeps what assets, who gets the car, who gets the house, what maintenance you need to pay to the other party, etc) which would be made an order of Court when you are divorced.

You would then be divorced and returned to your original position, financially at least.

If you don't enter into a consent paper, then you would need to get a "normal" divorce, where the estate would be split into half - with each person getting 1/2 of the joint estate.

Thank you for your question and if you feel that I have been of assistance kindly accept my answer.

If you feel that this answer exceeded your expectations feel free to award a bonus.

Regards


GoldLaw


Please note: This answer does not create an attorney-client relationship. Please consult a local attorney in person for legal advice. This information is being provided so you can better discuss legal matters with your attorney.
CaseLaw and other South Africa Law Specialists are ready to help you
Customer: replied 7 years ago.

I understand, but is there not a form that one signs even after mariage that allows one to keep his or her own belongings when they decide to divorce. I always hear about something called "free divorce" procedure, how does that work!

Expert:  CaseLaw replied 7 years ago.
Hi,

I have never heard about a "free divorce" procedure ever in South African civil law.

If you had signed an Antenuptial Agreement (ANC) BEFORE you were married then you would have been married OUT of community of property, and if you got divorced you would have kept your own assets.

If you didn't, then you could sign a post nuptial agreement, BUT it would be more difficult than just signing a consent paper for the divorce. A consent paper is MUCH simpler.

Thank you for your question and if you feel that I have been of assistance kindly accept my answer.

If you feel that this answer exceeded your expectations feel free to award a bonus.

Regards


GoldLaw


Please note: This answer does not create an attorney-client relationship. Please consult a local attorney in person for legal advice. This information is being provided so you can better discuss legal matters with your attorney.
Customer: replied 7 years ago.
What if my partner does not want to sign a consent form? Is there a way of forcing him to do that?
Expert:  CaseLaw replied 7 years ago.
Hi,

Please accept my first answer, and then I will post a follow-up answer about forcing him to sign a consent paper.

Regards
GoldLaw
Expert:  CaseLaw replied 7 years ago.
Hi,

I am afraid that there is NO way to FORCE your partner to sign a consent paper.

If that is the case, you will then need to agree on the terms of a consent paper that both parties will be happy with before it is signed.

This might mean that you will have to give up something to him, but it might also mean that he might have to give up something to you.

Remember, that you are married in community of property, so there is a joint estate.

You need to get out of the marriage with as many of your assets intact as possible. Consent paper will help!

Thank you for your question and if you feel that I have been of assistance kindly accept my answer.

If you feel that this answer exceeded your expectations feel free to award a bonus.

Regards


GoldLaw


Please note: This answer does not create an attorney-client relationship. Please consult a local attorney in person for legal advice. This information is being provided so you can better discuss legal matters with your attorney.