What You Can Claim in a South African Divorce — Assets, Maintenance, and More

Opposed or amicable, divorce is not a level playing field—and the law recognises that. Whether you’re stepping into a divorce suddenly or braced for the long haul, knowing what you can claim is both strategic and humane. Let’s walk through the framework South African law offers, and the pitfalls to avoid.

1. Matrimonial Property Regimes — The Foundation of What You Can Claim

Your matrimonial regime isn’t just legal jargon—it dictates your starting point:

• In community of property: Everything—assets and liabilities—gets split equally.

• Out of community with accrual: You each keep your estate during marriage; at divorce, the lesser-growing estate gets half the difference.

• Out of community without accrual: You keep what’s yours—unless married before 1 November 1984. Increasingly, courts are exploring redistribution for fairness even here.

Strategy note: A mischaracterised contract in pleadings can blindside you. Always verify which regime applies and ensure it features prominently in pleadings.

2. Divorce Claims — The Basics

Here’s what typically forms the claim menu:

• Immovable property: Homes, plots, investment properties.

• Movables: Vehicles, household goods, jewellery.

• Pension interests: Under Divorce Act ss 7(7)–(8) and Pension Funds Act s 37D, pension value must be claimed or it vanishes. Resigning pre-divorce? Risky.

• Investments & savings: Shares, accounts, policies.

• Business interests: Shares, partnerships—harder to value, easier to undervalue.

3. Maintenance — Two-Pronged

Child Maintenance

• Statutory backing under Maintenance Act and Children’s Act.

• Based on child’s needs and each parent’s financial means.

• Primary caregiver status and children’s welfare are central.

• Don’t assume half the time equals half the financial responsibility.

Spousal Maintenance

• Judge-guided discretion under Divorce Act s 7(2):

  • Consider needs, means, earning capacity, marriage duration, contributions.

  • Rehabilitative maintenance (short-term), or clean break outcomes.

• Courts avoid punitive or perpetually luxurious maintenance.

4. Interim Relief — The Pretrial Toolkit

Before finalisation, you may apply for interim relief to maintain stability:

• Pension peacekeeping — preserve your right under ss 7(7)–(8).

• Interim maintenance — for children or spouse where support ceased.

• Legal costs — ensures you can litigate fairly.

• Access or care orders — clarity for the children during chaos.

Tip: Get interim relief early. Delay often means losing leverage.

5. Valuations & Expertise — The Evidence Backbone

Claims without substantiation are just hopes:

• Valuations: Obtain detailed valuations for pensions, property, businesses.

• Expert evidence: Actuaries, property valuers, forensic accountants, social workers—all strengthen your case.

6. Common Pitfalls

• Neglecting pensions: Without proper order, rights vanish.

• Underplaying non-financial contributions: Home care, emotional labour—these matter.

• Misnaming funds or assets: Small mistakes in orders can derail enforceability.

7. Framework for Your Strategy

Think and plan ahead:

1.Determine your matrimonial regime.

2.Inventory and value all assets, especially pensions.

3.Secure necessary interim relief early.

4.Send a focused affidavit covering needs, means, and children’s welfare.

5.Engage experts for valuations and welfare assessments.

6.Draft final claims aligned with law, fairness, and long-term outcomes.

Conclusion

“What can I claim?” is more than a question—it’s your roadmap through one of life’s toughest transitions. From pensions to parenting, assets to advocacy, your claims must reflect fairness, law, and long-term stability.