SOUTH AFRICA Law and Practice Contributed by: Beverley Clark, Jana van Breda, Elmarie Erasmus and Jessica Clark, Clarks Attorneys
Marriages “out of community of property” are established by entering into a prenuptial agree - ment. These marriages have a complete separa - tion of property during the marriage, and parties can administer their own estates as they deem fit. The accrual system will automatically apply to all marriages out of community of property, unless the parties have expressly excluded its application in their prenuptial agreement. Under the accrual system, the increase in value of each party’s estate (with a few exceptions) is shared upon the dissolution of the marriage by death or divorce. Parties may also set commencement values and/or exclude specific assets from the accrual system in their prenuptial agreement. In marriages out of community of property and excluding the accrual system, the court may take certain factors into account and order a redistribution of assets from one party to the other, to prevent unfairness. Trusts Trusts are separate legal entities recognised in South Africa. Trust property is held by the trus - tees according to the terms of the trust deed. The trustees are responsible for managing the trust property for the benefit of beneficiaries, whether individuals or entities. Trust property is not, in the ordinary course, considered part of a person’s estate in divorce proceedings. If it can be proven that the trust is the “alter ego” of one or more of the trustees, or that the trust is a sham, and that a party trans - ferred assets into the trust during the marriage in a bad faith attempt to deprive the spouse of their legitimate claims on divorce, then the trust property could be considered to be part of the spouse’s estate for the purposes of the divorce.
Only then would the trust assets be included in the determination of the value of the estate of such party in divorce cases. As such, the bar is high for parties seeking to include trust assets in divorces. 2.4 Spousal Maintenance Attitudes Towards Spousal Maintenance During a marriage, parties have a reciprocal duty to support one another. However, the reciprocal duty of support that exists between spouses dur - ing the subsistence of the marriage terminates upon the dissolution of the marriage (by death or divorce). Accordingly, there is no automatic right to spousal maintenance post-divorce. Parties may agree to the payment of mainte - nance by one party to another post-divorce. If there is no agreement, a court granting a decree of divorce has the discretion to make an order for spousal maintenance post-divorce. The party who has a need for maintenance must bring such a claim in the divorce action in terms of Section 7(2) of the Divorce Act. This section provides that a court granting a divorce may make an order for the payment of maintenance it deems to be just and equitable, after considering a number of factors, such as: • the standard of living during the marriage; • the conduct of the parties that gave rise to the breakdown of the relationship; • the age of the parties; and • the respective earning capacities of the par - ties. Spousal maintenance post-divorce can be ordered either permanently (which is rare) or for a rehabilitative period. • the means of both parties; • the duration of the marriage;
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