Getting Married In Community of Property vs. Out of Community of Property

There are many decisions that a couple needs to make when planning to get married. Who to invite to the ceremony, what food to serve, where and when the wedding will take place etc. These are just decisions related to the ceremony and only scratch the surface of all the decisions that need to be made to make this joyous day perfect. When it comes to the marriage contract itself, couples have to decide what type of marriage they wish to enter into as this can have a long-lasting effect on their life together. In South Africa, couples are automatically married in community of property if there is no antenuptial contract in place and it is important to understand the effects of these different forms of marriage before tying the knot. 

Marriage in Community of Property

The marriage contract that you choose to enter into will ultimately determine how assets and liabilities will be divided in the event of divorce or death and governs the ownership of assets and debts throughout the marriage. Marriage in community of property means that both spouses become part of a joint estate that belongs to both individuals in equal shares. The estate is made up of all the assets and liabilities that both parties had prior to the marriage and also those that are acquired during the marriage.

This means that spouses share everything equally and that these two individuals are essentially seen as one entity during the marriage. If one partner incurs debts it becomes the responsibility of the other partner as well and any assets that are purchased by one spouse become the property of the other as well.

Couples that are married in community of property also need to get permission from their spouse to make important decisions relating to their assets and liabilities, such as buying property or taking out a loan. If the couple decides to get a divorce all the assets are split equally between individuals, regardless of who financed the purchase of these assets. 

Marriage out of Community of Property 

If a couple wishes to get married out of community of property they will have to enter into an antenuptial contract. This contract makes it so that each partner remains in control of their own estate. There are two systems to choose from when entering into an antenuptial contract: with the application of the accrual system and without the application thereof. 

With the Application of Accrual

When a couple gets married out of community of property with the application of the accrual system it means that both individuals maintain their separate estates after getting married and they do not share profits or debts for the duration of their marriage. Spouses will therefore not be affected by the debts of the other, however, they will share the assets that were gained during the marriage if the marriage comes to an end.

Accrual refers to the increase in the wealth of spouses during the marriage and the assets that each party owns prior to the marriage can either be excluded or included in the accrual calculation. If the marriage comes to an end, the spouse whose estate has shown the least accrual will have a claim against the estate that has shown more growth. 

Without the Application of Accrual

When entering into an antenuptial contract without accrual each spouse’s estate remains their own throughout the marriage and the same is true if the marriage ends in divorce or death. This means that spouses will not share in their partner’s assets or liabilities, regardless of whether these were acquired before or after getting married. Spouses do not require any consent from one another when making important financial decisions as their estates remain completely separate from one another.

Contact Cawood Attorneys if you require assistance drawing up an antenuptial contract, or feel free to browse our website for more information on any of our services.