If the parties can agree on how they wish to finalize their marriage, they can regulate their agreement in a written document called a settlement agreement for the termination of their marriage. The settlement agreement becomes the Court Order of Divorce when the divorce is granted.

When both parties are married in Community of Property, any money or possessions belonging to either of the spouses at the time of the marriage, or acquired by them at any time thereafter, cease to be the private property of the one person and become part of a joint estate in which each of the partners has an equal, undivided share.

Upon divorce, the assets of the joint estate as of the date of divorce will be divided equally between the parties, unless a spouse claims forfeiture and the court grants such a forfeiture order. 

Should spouses not reach an agreement on how to divide their joint estate (as often happens), the court has the power to appoint a receiver or liquidator to divide the assets of the joint estate on its behalf.

Where one spouse is acting negligently or recklessly and alienates assets of the joint estate pending divorce, the other spouse may lodge an application to the court to suspend his/her spouse’s capacity over the joint estate. If the court order becomes granted, the spouse who brought the application may then control the estate without the other’s consent.

Generally, couples married out of community of property are free to deal with their personal property as they choose at all times, and if one partner is declared insolvent, the other’s property is protected.

In principle, each can perform any legal action in connection with the common property independently of the other, although several more important transactions require the agreement of both spouses and consent may be required in writing.


In South African law, every civil marriage is governed by a particular marital property regime. Permission must be obtained from one another when making decisions regarding the assets. Upon dissolution of the marriage, the assets of the joint estate will in principle be divided equally between the parties.