How to keep your assets after a divorce

Photo: Getty Images/Gallo Images
Photo: Getty Images/Gallo Images

Divorce is a highly emotional time and affects all areas of one’s life.

 One of the biggest is finances, and the emotional nature of a marriage breaking down means that many people make irrational decisions about this sensitive subject.

 It’s common to hear statements like “He/she can keep it all, I don’t want any money”.

In fact, you’re fully entitled to assets and cash, which could possibly help ease the pain of the split.

Divorce in South Africa

The course of a divorce is determined by the type of marriage. Civil marriages (such as court weddings or church weddings in the presence of a registered marriage officer) are ended according to the rules in the Divorce Act 70 of 1979.

 Marriages in terms of African Customary Law are ended according to the civil law and are also under the Divorce Act, but some of the outcomes are determined by custom and tradition, too. Muslim and Hindu marriages are ended in terms of the rites and rituals of the religion. An Islamic Marriages Bill is still before Parliament to recognise Islamic unions legally.

The divorce act and finances

The marriage contract decided upon before the marriage will determine the division of assets; we’ll look at the different forms of marriage in more detail next month.

A prenuptial agreement, if there is one, will determine how assets are split and, if there is no premarital contract, then the law will determine the division. The default legal position is that civil marriages and African customary marriages after 1998 are in community of property with accrual. This means all assets, cash and debt are shared, including property and investments.

Accrual means that everything you earn or buy after marriage also becomes part of the joint estate. If the marriage is out of community of property without accrual, then each spouse keeps their own property from before the marriage and keeps whatever they earn or acquire during the marriage.

The laws that were in place when you got married will determine what property rule applies to your marriage. If you were married traditionally before 1998, the marriage is treated as out of community of property. If you got married after 1998, then it’s in community of property.

Customary marriages

 Customary marriages are similar to civil marriages because a court must issue the divorce order, and the divorce will only be granted if there are grounds for divorce (that is irretrievable breakdown, mental illness or continuous unconsciousness).

Wives from traditional marriage breakdowns are equally entitled to financial support and assets, just as they would be in civil marriages.

The parties can decide the terms of the divorce and then the judge will issue the relevant orders regarding custody and maintenance. If the court has to decide on these matters it will take into account any arrangements that might have been made in terms of customary law.

The wife’s family might have to return all or part of the lobolo money to the husband’s family, unless the husband publicly rejected his wife for no reason or was unfaithful.

Don’t walk away from assets

Many couples end marriages and walk away from marital assets because they don’t want to draw out the pain. But a marriage is a financial investment, and time and effort must be adequately compensated.

Regardless of the circumstances, spouses are entitled not only to the assets split, but maintenance after the marriage too.

Many people refuse maintenance but it’s important for spouses who were home executives, for example, and who might have given up career opportunities and education to be in a marriage. Even when a wife requires no spousal support, it’s important that they claim even R1 a year in spousal support for life.

This is because life situations change and if ever you find yourself in hard financial times, while a former spouse is thriving, it’s your right – having invested in a marriage that might have cost you opportunities. If this claim is not made at divorce, the court cannot decide to enforce it in the future. Men can also claim spousal support from their ex-wives.

Professional advice

Together with a competent divorce attorney, you also require the services of a certified financial planning professional.

You need to hand over all the financial decisions to unbiased professionals who will ensure you get the best settlement for your financial security in the future. You need a certified financial planning professional to:

Serve as a financial investigator.

Present the financial facts in an unbiased manner.

Help define an equitable split of the marital assets.

Create custom plans for the completion of this task.

WHAT TO DO:

Consider debt

Divorce is also a sharing of debt; it might appear that there are many assets and cash, but if these are all supported by debt, you might find yourself in serious financial hardship.

Know the liquidity (available cash) in the marriage

Know that where there is no cash to cover costs, assets will be sold. It’s essential to report any hidden assets to your professional advisers.

Don’t hire a friend

Do not hire a friend or family member as an attorney or financial planner: having the professional supporting you be emotional can only weaken your case. You need an objective, neutral and clear-minded adviser.

Consider tax

Divorce has tax implications, all the more reason for a financial professional adviser.

Have a post-divorce money plan

 Ensure that your divorce settlement can maintain your preferred lifestyle.

Avoid sentimental attachment

During a divorce, all assets assume monetary values over sentimental values, so let go of all the memories and think things through realistically.

Ignoring the signs

Make copies of bank statements and have all information of assets if you suspect your partner wants a divorce. It’s better to always know this information, as assets are often hidden once a divorce is planned or asked for.