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WCLawyer
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 15603
Experience:  L.LB (UOVS)
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I am married out of community of property and have been married

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I am married out of community of property and have been married for 28 years in the case of a divorce what are my legal rights and what am i entitled too claim for?
Good day and thank you for your question. My name is XXXXX XXXXX I will try and assist you today.

In order to provide you with the most accurate answer, I may have to ask you a lot of questions. This may seem tedious and irrelevant, but trust me, there is a reason for every question. So please be patient throughout the process and if it takes a little long for me to come back to you, it is probably because I am researching your answer. I hope that is okay.

Are you married with, or without accrual?
Customer: replied 3 years ago.

We are married within the accrual system


 

Do you have any minor children?
Customer: replied 3 years ago.


No we don't have any minor children

1. If you are married out of community of property, but with the accrual system, should the marriage end through death or divorce, the party with the least amount of accrual has a claim for half of the difference between the accrual of the party with the largest increase accrual and the accrual of the party with the smallest increase in accrual.

This is a mouthful, but can be better explained like this:

Out of community of property:
This means that what is yours is yours and what is his, is his. Each party has his and her own estate. Each party is responsible for the debts of his estate and has the sole right on the assets of his estate. There is, therefore, two separate estates.

Accrual:
This means that should the marriage end through death or divorce, the party with the least amount of accrual has a claim for half of the difference between the accrual of the party with the largest increase accrual and the accrual of the party with the smallest increase in accrual.

To calculate this, we need a begin value of each spouse and an end value of each spouse, as well as an inflation factor. I am not going to give a lot of attention on the inflation factor, but this is used to establish what the starting value of each spouses' estate is worth in current terms.

The start value would be the value of your estate at the start of your marriage as it has been penned down in your ante-nuptial agreement. To this, you would then apply the inflation factor.

So, step 1 in the process would be to establish a starting value:

Let's assume that is done and the starting value, in current monetary terms, is R 10 000 for (A) and R 10 000 for (B).

Step 2 would be to establish an end value. This would be the value of each spouse's estate at the end of the marriage. Let's assume that (A) has an end value of R 160 000 and (B) has an end value of R 110 000.

Step 3 would be to establish who had the largest accrual. In other words, whose estate value increased the most. To establish this, you simply subtract the start value from the end value. In this example (A)'s would be calculated as follows: R 160 000 minus R 10 000 equals R 150 000. (B) would be calculated as follows: R 110 000 minus R 10 000 equals R 100 000. (B) therefore had the least amount of accrual and would be the party with the accrual claim. Note that, if the end value is less than the start value, the accrual value is R 0. It does not go into negatives.

Step 4 would be to calculate the amount of the accrual claim by subtracting the small amount from the larger one and dividing the answer by two. In this example: R 150 000 minus R 100 000 equals R 50 000 divided by 2 equals R 25 000. (B) would therefore have a claim of R 25 000 from (A) in terms of the accrual system.

This is an automatic right. You are entitled to this, regardless, if your estate has shown the least accrual.

2. Spousal maintenance is not an automatic claim as child maintenance would be. The person claiming spousal maintenance must prove that he/she is entitled to spousal maintenance. A spouse claiming maintenance must, therefore, put forward reasons on why such a spouse is entitled to maintenance. The court will take into account these factors and make a decision.

Factors may include existing and prospective earning capacities of both spouses, affordability, the ages of the spouses, how long they were married and how much each spouse contributed to the day to day household, standard of living prior to the divorce, the reason for the divorce, if the spouse claiming maintenance did not work, why he/she did not work and any other factor that the court deems relevant.

I hope I have answered all of your questions and addressed all your concerns, but if you have follow up questions before you rate, feel free to ask them at no extra cost. If you are satisfied with the service, kindly rate it positively.
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