On entering into marriage, the spouses assume community of property for the purpose of their assets unless they agree otherwise or have received an inheritance or gift which a third-party has decided should be the recipient’s separate estate. The nature of the asset is of great importance in the event of separation/divorce or death.
We offer you advice about the consequences of community property and your options for setting up a marriage settlement.
Separation/divorce is one of the greatest life crises that we as people can find ourselves in. Having to decide how to divide community property, whether to sell the joint home, who gets the car, the hi-fi or the external hard disk with the family photos on can therefore be an immense task to take on board.
Basically, the upshot of separation/divorce is that matrimonial property is discontinued, and the spouses’ positive net community property is shared equally between the spouses – irrespective of whether one of them has contributed assets of greater value to the community property than the other. This is done by dividing the estate.
Unmarried cohabitants (or de facto spouses) do not enjoy the same status as spouses if they separate or die.
This means that unmarried cohabitants’ assets are not covered by community of property and will therefore not be calculated and divided equally in the event of separation or breakdown.
If you are separating from a spouse or a cohabitant and need to work out where the children are going to live, and how often they are going to see the other parent, it’s a good idea to seek advice. After a marital breakdown, parents are divided into a residential (custodial) parent and a contact (noncustodial) parent. Going forward, there is the additional matter of child maintenance or general finances regarding the child(ren) to consider.
A conversation about sharing the child(ren) can be a sensitive topic and at the same time have a great bearing in financial terms. The party that is the residential parent will be eligible for government grants and subsidies as well as qualifying to apply for support from the local authority.