- Introduction
In South Africa, the choice of a matrimonial property system/type is a significant decision that can impact the financial rights and responsibilities of spouses especially at the dissolution of the marriage (i.e. divorce or death). This article examines the 3 (three) matrimonial property types in South Africa being:
- Marriage in community of property;
- Marriage out of community of property without accrual; and
- Marriage out of community of property with the accrual.
- Marriage in community of property
This is the default/automatic regime in South Africa unless otherwise specified in an antenuptial contract (commonly known as a “Prenup” in other legal systems) before conclusion of marriage . Under this marriage type, spouses share both assets and liabilities equally, regardless of whether such assets and liabilities were acquired before or during the marriage. Should one spouse incur debt (e.g. credit card debts), both spouses will be jointly liable for the debt. This entails is that after conclusion of the marriage, the couple’s estate becomes joint (in other words “one” estate).
Accordingly, one spouse cannot sell or encumber any of the assets forming part of the joint estate without the other spouse’s consent (certain exceptions apply). As some would say: “what’s mine is yours and what’s yours is mine”.
- Marriage out of community of property with accrual
In this arrangement, each partner retains ownership of their premarital and individual assets, but they may share in the growth (accrual) of their estates during the marriage. The accrual system means that at dissolution of the marriage, the spouses will share the growth (“accrual”) that accrued to their respective estates during the subsistence of the marriage. It is worth noting that the spouses’ assets and liabilities do not form part of any joint estate.
The spouses only share the growth in the value of their respective estates accruing from date of the marriage. Accordingly, the spouse with less growth in their estate will have an accrual claim against the spouse with the larger accrual growth.
- Marriage out of community of property without accrual
If a couple does not want to be married in community of property, they must conclude an antenuptial contract.
This regime is selected by couples who wish to keep their finances entirely separate. Each spouse maintains sole ownership of their assets and responsibility for their debts. While this offers maximum financial independence, it can lead to potential disparities in wealth accumulation between spouses.
Accordingly, upon dissolution of the marriage, there will be no joint division of the estate and no accrual claim against the other spouse as a result of the increase their separate estate
- Changing Matrimonial Property Regimes
In certain circumstances, couples want to change their chosen matrimonial property system. This can be done through a court application, and the court will consider factors such as the reason for the proposed change, and the interests of creditors.
Conclusion:
Selecting the appropriate matrimonial property regime is a critical decision that can significantly impact the financial aspects of a marriage. Couples in South Africa have the flexibility to choose a regime that aligns with their values, financial goals, and cultural preferences.
Seeking legal advice before making this decision is advisable, as it ensures that both partners fully understand the implications of their choice and can make informed decisions that contribute to a harmonious and secure marital partnership.
Disclaimer: this article is for general public information and use. It is not to be considered or construed as legal advice. Each matter must be dealt with on a case-by-case basis and you should consult an attorney before taking any action contemplated herein.
Written by: Mohau Ketshegofaditswe Ledwaba
