What is a non-working spouse entitled to in a divorce in South Africa

What is a non-working spouse entitled to in a divorce in South Africa?:

In South Africa, a non-working spouse is typically entitled to a share of the marital assets and may also be eligible for spousal maintenance depending on the circumstances. This entitlement is influenced by the marital regime under which the marriage was conducted.

Division of Assets

Marital Regime: The distribution of assets depends on whether the marriage was in community of property or out of community of property with or without accrual.

  • In Community of Property: Both spouses own all assets and liabilities equally from the date of their marriage. In a divorce, these assets and liabilities are divided equally.
  • Out of Community of Property without Accrual: Each spouse retains their own assets and liabilities, both those acquired before and during the marriage.
  • Out of Community of Property with Accrual: Each spouse keeps assets acquired before the marriage but shares the assets accumulated during the marriage. The non-working spouse is entitled to half of the accrual (the growth in assets) during the marriage.

Spousal Maintenance

Eligibility for Maintenance: A non-working spouse may be granted spousal maintenance if they cannot support themselves post-divorce. This is especially common when the spouse has sacrificed career opportunities to support the family or raise children.

  • Factors Considered: The court considers the non-working spouse‚Äôs current and expected future financial needs, their age, the duration of the marriage, and the standard of living during the marriage.
  • Duration of Maintenance: Spousal maintenance can be temporary (rehabilitative) or permanent, depending on various factors, including the length of the marriage and the recipient’s ability to become self-supporting.
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By understanding the marital regime and the potential for spousal maintenance, a non-working spouse can better prepare for the financial outcomes of a divorce in South Africa.

Who is Regarded as a Non-working Spouse

In legal terms, a non-working spouse refers to an individual in a marriage who does not engage in paid employment outside the home. This could be for various reasons, including:

  • Raising children
  • Taking care of the household
  • Supporting the other spouse’s career indirectly
  • Being unable to work due to disability or other personal circumstances

The non-working spouse often contributes to the marriage in non-financial ways, which are recognized under the law, especially during divorce proceedings. Their role in supporting the household and family is considered when determining entitlements such as the division of assets and eligibility for spousal maintenance. This acknowledgment helps ensure that they are not financially disadvantaged by their lack of paid employment during the marriage.