How does separation affect your estate in the event of death? Attorney weighs in...

Separation means that you are living apart from your spouse but are still legally married until you get a judgment of divorce, explains divorce net. 

This is a step many couples take while considering divorce. It is a period where they will use it to consult with their marriage counsellors to try and see if they can save the marriage. 

However, in the midst of the separation, the worst can happen.... death can occur. 

Nthabiseng Ngoepe, an attorney at Kgatla Incorporated and the author of 'The Mending of a Broken Vessel', says South Africans need to be aware that in terms of the law, our country "does not provide for separation."

She says in South Africa, you are either married or divorced and "there is no grey area in between that is provided for by a specific Act or law."

"So while one may be separated, one in essence remains legally married until the divorce is instituted and finalised," says Ngoepe. 

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Best legal tools to help navigate separation

"Please note that most importantly, while the SA law does not recognise separation as a legal status, the SA courts can enforce a separation agreement," says the attorney. 

She adds that couples can use the below tools to help them. 

The first one is to enter into a separation agreement. "In it the parties can record their agreement on various issues such as maintenance of children, expenses for the marriage (marital debts), even spousal maintenance or support, bonds, medical aid. They can also enter into a Parental Agreement that will regulate aspects dealing with the children born of the union.

"Such agreements are the only way to go for us in SA because as long as the marriage is not dissolved by a court of law, separated or not, one is deemed to be married."

What happens in the event of death? 

"The normal laws of intestate comes into effect as they are applicable to married people. The spouse you are separated from will still be deemed the beneficiary of your estate. Whether in or out of community, they will inherit from you so long as you have no will in place. It is therefore best to have a will in place disposing of one's share in the marital estate. That is allowed," states Ngoepe. 

She adds that it is important to make sure your will is always updated. 

"Lockdown the details of your separation in an agreement, and have a will in place expressing how your estate (i.e. own assets) should be dealt with in the event of your passing before finalising your divorce while in separation," she says. 

How separation affects your debt

"Parties married In Community of Property should always provide spousal consent when the other is taking out individual debts. The legal effect is that such is a debt of the estate, if the one party fails to pay it, the other may be held liable for it. Therefore under a separation agreement is where we must outline that henceforth (i.e. from date of such agreement) each party is liable for which specific debts. If that is not done, we remain jointly liable. Sadly it remains the case even when one was never consulted; thus a separation agreement must not be neglected at all. It is vital to regulate things like this," she says. 

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Can you get involved in another romantic relationship while going through separation with your spouse? 

"There is no hard and fast rule on dating as a separated person. While one can explore relationship it again will be done as a person that is for all legal purposes, married," says Ngoepe. 

The importance of finalising your decision ASAP

"Having said this, not all separations are amicable and some parties cannot even sit on a joint table to reach such an agreement. So the instant one resolves on separation, it is imperative to determine whether you are moving towards dissolution of the marriage and move to finalise the divorce as soon as possible," concludes Ngoepe. 

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