Divorce Mediation for Couples Married Out of Community of Property with the Accrual System
- Mediation Academy
- Mar 17
- 2 min read
Updated: 5 days ago
Divorce Mediation South Africa: Out of Community of Property with Accrual
Divorce can be an emotionally and financially challenging process, but Divorce Mediation offers a way for couples to dissolve their marriage amicably. For couples married out of community of property with the accrual system in South Africa, mediation ensures a fair and legal division of assets in divorce in South Africa. Here’s how to effectively mediate such a divorce.
Understanding the Accrual System
Under South African law, when a couple is married out of community of property with accrual, each spouse retains ownership of the assets they had before marriage. However, during the marriage, any increase in the net value of each spouse’s estate is subject to division upon divorce. The spouse with the smaller accrual is entitled to half of the difference between their accrual and that of the spouse with the larger accrual.
Steps to Mediate a Divorce Under the Accrual System
1. Establish a Neutral Mediation Environment
The Divorce Mediation process should take place in a neutral, non-confrontational setting. Both spouses should feel comfortable expressing their concerns and discussing financial mediation in divorce matters openly.
2. Identify and Confirm the Marital Regime
The mediator must first confirm that the couple was married out of community of property with accrual. This can be verified by reviewing the antenuptial contract (ANC), which outlines the financial arrangements agreed upon before marriage.
3. Calculate the Accrual of Each Spouse
Each spouse must disclose their financial positions at the beginning and end of the marriage. The calculation involves:
Determining the initial net worth of each spouse at the time of marriage.
Assessing the net worth of each spouse at the time of divorce.
Deducting the initial value from the final value to determine the accrual.
Any inheritances, donations, or specific exclusions mentioned in the ANC are not included in the accrual calculation.
4. Facilitate Discussion on Accrual Sharing
Once the accrual is calculated, the mediator helps both parties negotiate a fair Divorce Settlement Agreement in South Africa. Open and transparent communication is essential for a smooth process.
5. Address Additional Financial Considerations
Beyond the accrual calculation, the couple may need to discuss additional financial matters such as:
Spousal maintenance (if applicable)
Division of debts and liabilities
Child maintenance and custody (if children are involved)
The mediator ensures that all these issues are addressed comprehensively.
6. Draft a Divorce Settlement Agreement
Once the parties reach an agreement, the mediator or a legal professional can draft a Divorce Settlement Agreement in South Africa. This document outlines how assets, debts, and responsibilities will be divided, ensuring it is legally sound.
Conclusion
Divorce Mediation in South Africa under the accrual system requires a clear understanding of the law, financial calculations, and effective communication. A skilled mediator can help couples achieve a fair settlement while minimising stress.
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