- If you do not have a prenuptial agreement before getting marred, you cannot protect your assets during a divorce settlement.
- Couples tend to have no prenuptial agreement, this automatically leads to marriage in community of property.
- Lawyers are the worst people to consult when settling a divorce, says legal expert.
Divorce settlements tend to drag, with one partner demanding to keep the house and the other demanding to keep the car. No matter what you bring to the table before or during your marriage, it can easily be split into two and shared with your ex-partner.
The truth is premarital couples should plan for their divorce before getting married, especially if they do not want to lose half of their wealth to their partner.
Chairperson at Father's 4 Justice South Africa Gary Da Silva explains that a divorce settlement without a prenuptial agreement is automatically considered a marriage in community of property. This means that if the couple were to settle their divorce in court, they would have to divide their assets and debts equally.
"It's way too late," says Gary, as he highlights the importance of drawing up the prenuptial agreement before getting married because you can no longer protect your assets once the divorce settlement has begun.
He makes reference to South African traditional marriages that are conducted without any legal supplementation. As some traditional marriages are not documented in court, it becomes challenging to prove that the parties were ever married and it becomes difficult to divide their assets upon divorce.
The prenuptial agreement consists of the following options:
1. In Community of Property with Accrual
When settling a divorce in community of property with accrual, the divorcees are required to equally divide their assets between each other because according to the law, they are in one joint estate. Gary personally advices against this agreement.
2. In Community of Property without Accrual
Assets are shared equally during marriage but there is no accrual upon divorce, and assets will not be shared.
3. Out of Community of Property
The assets that each spouse came into the marriage with remain separated ,and they will not be shared with the spouse upon divorce. "Each party leaves with what they brought into the marriage," says Gary.
4. Out of Community of Property without Accrual
Ever heard of the saying, "What is mine is mine, and what is yours is yours"? Well, this prenuptial agreement is exactly that. Spouses get to retain the assets and liabilities that they own without having to equally divide anything. Whether they were obtained before or during the marriage, they will be kept by the person who has ownership.
READ MORE | 4 tips to restore your finances after a divorce
"Parties must mediate a settlement at the point of the divorce. Or arbitrate," Gary says because he advises against litigation. He believes that litigation is the worst financial option for a divorce settlement and it breaks up families.
He further stated lawyers are not the people you should consult with when settling a divorce because the entire litigation procedure should have a winner and a loser. "Getting a lawyer involved is probably one of the worst financial decisions."
Gary highlights how average litigated divorce settlements take five to eight years and cost approximately R1 million to R8 million. The loser ends up paying a large portion of their wealth to their spouse and the rest goes to the lawyer.
He states that litigation does not only impact the spouses but the children as well.
Gary touched on how children tend to be separated from one of the parents during the divorce process.
"Both parents enjoy automatic immediate rights of contact care," he stated, highlighting how no parent should relocate to another town, province or country without written consent from the other parent. He states that this is a form of abuse to the child, and it torments the parent who cannot spend time with their child.
