2014 / 12 / 01
When a couple decides to marry, they are required to determine under what matrimonial property system they would like to marry.
In South Africa, there are three (3) matrimonial systems under which a couple may marry:
- In community of property;
- Out of community of property, with the accrual system; and
- Out of community of property, without the accrual system.
In Community of Property
If a couple does not sign an antenuptial contract before the marriage, they are automatically married in community of property in terms of South African law which means that the property, assets and liabilities belonging to both parties at the time of marriage or acquired any time during the marriage are merged into a single estate known as a joint estate. The parties own the assets and liabilities in the joint estate in equal undivided shares and they are joint administrators of the joint estate.
The consent of both spouses is needed when buying or selling a house, applying for a bond, signing a deed of surety or entering into a hire purchase agreement.
If one spouse is reckless with their financial affairs, it will affect the other spouse, as they are each responsible for one another’s debts.
On termination of the marriage the joint estate will be divided equally regardless of what spouse earned the most or had the most assets when they married.
Out of community of property, with the accrual system
If a couple decides to get married out of community of property, they are required to execute an antenuptial contract before a notary public. This is a contract which they sign before they marry in terms of which they specifically exclude community of property.
