THE EFFECTS OF THE DIFFERENT MARITAL REGIMES ON DIVORCES

Now that we know what each of the marital regimes entail, we can now move on to the consequences of each marital regime when it comes to a divorce.

When parties are married in community of property, this means that literally everything of the parties has to be divided in half. This includes any property registered only in one of the parties’ names, such as an immovable property.

With this kind of marital regime, each party also has a claim to half of the other’s pension fund or any annuity as well as any funds in any bank account in such person’s name.

What one should keep in mind is that any debt that either party incurs is also the debt of the other party and at the dissolution of the marriage, any debts have to be settled before any property can be dealt with.

This regime is favorable for parties who were not employed or were homemakers during the subsistence of the marriage to ensure that they are able to survive after the dissolution of the marriage.

The rules relating to this marital regime are however not set in stone and there are ways wherein a party can move from the rules such as entering into a settlement agreement for more favorable terms.

Furthermore, there may be reasons at the time of divorce as to why one party has to forfeit half of its share. Reasons for this may include financial contributions or even the behavior of either of the parties during the subsistence of the marriage.

Where parties are married out of community of property with or without the accrual system, each party retains their own separate estate.

One of the advantages of this type of regime is that one party’s creditors cannot hold the other party liable for payment of the first party’s debts or attach the party’s assets to settle claims.

Another advantage is the fact that one party cannot claim any part of the other party’s pension fund or annuity. With a marriage out of community of property with the accrual system, it has to be clearly stated in any antenuptial contract that pensions and annuities will not form part of the parties’ accrual.

The advantage of this kind of marital regime is that only the party in the better financial position during a divorce will benefit and the party, for example a housewife, will be left with next to nothing if the parties were married out of community of property without the accrual system.

Contact our offices to speak to one of our friendly divorce attorneys should you require any assistance regarding an ongoing or pending divorce.