The Billgate – Dealing with consequences of marriage in community of property upon divorce

consequences of marriage in community of property

There has been a general upward trend in divorce rates globally since the 1970s and divorce has become quite common. Nevertheless, it is always a shock when some couples announce an intention to end their marriage. This is because some couples are perceived as being “couple goals”, as the kids say. This was the common feeling when Bill and Melinda Gates made their announcement on Monday, 3 May 2021.

What was even more shocking for most people, however, was the fact that the two are married in community of property.

Bill Gates is the co-founder and former CEO of Microsoft and has an estimated net worth of at least USD $134.1 Billion. Besides their other investments, Bill and his wife, are cofounders of the Bill and Melinda Gates Foundation which has more than USD $51 Billion of their joint assets tied up in the Foundation. This potentially makes the division of their joint estate a lot more complicated seeing as they did not sign a prenuptial contract.

In South Africa, most marriages are in community of property. In the excitement of planning a future together, it is understandable that many couples avoid talking about how their estates would be separated if the marriage were to end. Consequently, upon divorce, the parties to the marriage each have a 50% claim to the joint estate.

Although this may seem catastrophic, especially for rich people, it does not have to be. Section 7(1) of the Divorce Act 70 of 1979 provides that:

“a court granting a decree of divorce may in accordance with a written agreement between the parties make an order with regard to the division of the assets of the parties or the payment of maintenance by the one party to the other”.

This means that, despite being married in community of property, the parties to a marriage in community of property are not completely at the mercy of the courts. They are still in a position to make decisions and reach an agreement on how they want their assets to be shared between the two of them and indeed the courts encourage them to do so.

In 2009, acting Judge Brassey in Brownlee v Brownlee (2008/25274) emphasized the need for disputing parties to attempt to mediate the dispute as well as the need for the attorneys for both parties to encourage mediation. While Judge Blieden in Clemson v Clemson [2000] 1 All SA 622 (W), also stated that “divorce proceedings are normally traumatic events for those directly affected by them” and that the court “expects attorneys acting for their clients to act as professional people and officers of the court; to display objectivity and sound common sense in assisting their clients”.

If the stories in the news are anything to go by, it seems Bill and Melinda have done the commendable thing as it is alleged that they have a “separation contract’ in place that stipulates how they will split their property, in what will likely be one of the largest settlements ever.

If you are going through a divorce and wish to have it finalized seamlessly and without further squabble, please contact us for assistance.

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