Divorce and Matrimonial Regimes in the South African Context 

Context

Achraf Hakimi is said to be in the process of going through a divorce with his wife, Hiba Abouk and social media platforms are rife with rumours that the Paris Saint-Germain star has transferred all his assets to his mother. 

The couple is assumed to have been married in terms of French Law, which has the three regimes, as listed below, as it is derived from British law.  Like France, South African Law also three (3) types of Matrimonial regimes, and they are as follows:

Marriage In Community of Property

In this regime, spouses cease to have individual estates and all their assets and liabilities are joined to form the joint estate. This includes property obtained by either spouse before and during the marriage.

According to this regime, a spouse cannot do the following without obtaining the consent of the other (or ratification shortly after the fact):

• buy, sell, mortgage or enter into any contract in respect of the immovable property forming part of the joint estate;
• alienate, cede or pledge, anything to do with shares, stock, insurance policies or investments by or on behalf of the other spouse in a financial institution;
• bind him/herself as a surety; or
• donate to another person any assets of the joint estate,

Essentially, in terms of this regime, a spouse cannot act without the approval of the other. However, assets such an inheritances and donations fall outside of the joint estate.

Marriage Out of Community of Property with Accrual

At the dissolution of the marriage, each spouse will calculate the net accrual of their separate estates from the beginning to the end of their marriage. The spouse with no accrual or the smaller accrual acquires a claim against the estate of the other spouse for an amount equal to half of the difference between their respective estates.

The same consent requirement as those of a marriage in community of property apply to this regime, but only in respect of transactions relating the assets and liabilities that form part of the joint estate.

Marriage Out of Community of Property without Accrual

There is no joint estate that is formed. Each spouse has their separate estate and neither acquires a claim against the other.

Commentary

There is no loophole in the South African law that would allow for spouses to evade the division of a joint estate at the dissolution of their marriage.

However, there is one interesting option which is contained in section 9(1) of the Divorce Act which reads:

“When a decree of divorce is granted on the ground of the irretrievable break-down of a marriage the court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part, if the court, having regard to the duration of the marriage, the circumstances which gave rise to the break-down thereof and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefited.”

Undue benefit, as highlighted above, seems to speak to the reason behind the many praises Hakimi has received from men around the world.

This option is available to any spouse married in a regime that required a sharing of the estates in one way or another.

What the Act provides is that if your belief is that despite the love that existed within the marriage, your former spouse should not receive half or any portion of the shared estate for reasons such as serial cheating or the fact that the marriage only lasted 2 years, the court may consider these factors before it gives a final order on the division of your estate.

It is also important to note that while we await the court’s final verdict there are certain facts to which we are not privy. First, we do not know in what matrimonial regime the couple are married under. Second, when Hakimi transferred all his property under his mother’s name, therefore, we cannot form a conclusive opinion on this developing story.

In South Africa this would not even have happened unless he was married out of community of property and without accrual. The fact that the wife expected 50% of the joint estate, we cannot help but imply that their regime had some form of a joint estate, without an antenuptial contract.

Upon the registration of the marriage, at the very least, all assets acquired by Hakimi as a result of his Paris Saint-Germain salary and any other income would have been transferred back into his name and account to form part of the joint estates, because for instance the continuous payment of his salary to his mother, even if it was packaged as a donation, be require the pre-approval by his wife.

The alleged divorce is layered and also has tax implications, however we will not delve into the tax implications involved in Hakimi’s actions as this matter is an ongoing story which we are yet to have full facts of. 

Please note that the above commentary has been authored for information purposes only and does not constitute legal advice. The reader is therefore advised to consult with an attorney where necessary.