SOUTH AFRICA Law and Practice Contributed by: Beverley Clark, Jana van Breda, Elmarie Erasmus and Jessica Clark, Clarks Attorneys
Where parties have a South African prenuptial contract out of community of property without the application of the accrual system, each party retains assets in their own names – unless the court makes an order for the redistribution of certain assets, having regard to a number of fac - tors. If the proprietary consequences of the marriage are governed by the laws of another country, the South African courts apply that particular country’s laws to the division of assets, as if the divorce were being heard in that country. There - fore, expert evidence about the applicable law will be necessary. The choice of law in relation to the proprietary consequences will be deter - mined in accordance with the lex domicilii matri - monii, or by a choice of law clause in a prenuptial agreement, or by the contents of the prenuptial agreement itself. Financial Orders to Regulate or Reallocate Assets If the parties have not reached an agreement regarding this, the court has the authority to make an order regarding: • the payment of maintenance for any period;
• the party contributed directly or indirectly towards the maintenance or increase of the other party’s estate; and • the party saved expenses that would other - wise have been incurred. Identifying Assets and the Disclosure Process During litigation, parties are required to make full financial disclosure to one another and the court. In Gauteng and Limpopo, this initially occurs by way of a detailed Financial Disclosure Form, which is signed under oath and is sub - ject to penalties for perjury. Specified support - ing documents are required to be provided with this form. Other provinces in South Africa are in the process of considering and implementing the Financial Disclosure Form. The parties can also make use of the Uniform Rules of Court, which provide for extensive dis - covery under oath, specific documents to be called for, and the power to subpoena docu - ments and call witnesses. Subpoenas are com - monly used to procure documents and infor - mation from banks, employers and relevant companies and trusts, but cannot be issued on foreign entities or individuals other than by way of special procedures, which can be costly and take a long time. Property Regimes and the Division of Assets In South Africa, there are two primary matrimo - nial property systems: marriages in community of property and marriages out of community of property. As stated above, “community of property” (uni - versal community) is the default system for civil marriages in South Africa. Under this system, a “joint estate” is created where all the assets of both parties are combined and the parties are jointly responsible for the liabilities of the other.
• the transfer of assets; • lump sum payments; • periodic payments; and/or • the transfer of pension interests.
As a starting point, the court will consider the matrimonial property regime that governs the marriage. If there are other claims (such as a forfeiture of benefits, redistribution or a spousal maintenance claim), these will also be taken into account. Factors the court will consider include whether: • the order is just and equitable;
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