MARITAL REGIMES IN SOUTH AFRICAN LAW By Shelton Mahandana

While celebration of the union between two people who love each other and the solemnization of their commitment to one another is a joyous and wonderous celebration, what is even more wonderous is the common mistake that couples make in failing to properly inform themselves of the various marital regimes and the consequences they create. It is more important for couples to understand those different types of marital regimes and have accessibility to information to avoid consequences that comes with failure.

In attempt to prevent such failures and inform interested parties about the legal aspects of marriage in South Africa, this article will briefly explain the marital regimes within the South Africa legal system.

In South Africa there are three marital regimes, namely.

  1. Marriage in Community of Property.
  2. Marriage out of Community of Property with the Accrual System.
  3. Marriage out of Community of Property without the Accrual System.

 

Marriage in Community of Property

In terms of marriage in Community of Property, both parties (you and spouse) are the owners of the joint estate. The joint estate comprises of all assets and liabilities that are consolidated into one single estate. This includes all assets accumulated by both parties prior to marriage. In South Africa, a marriage in community of property is the default system whereby parties are married without a registered prenuptial or ante nuptial agreement.

Advantages of marriages in Community of Property

  • One single joint estates
  • Both spouses are owners of undivided half-shares of all the assets of the joint estate
  • There is equality between the parties.

Disadvantages of marriages in Community of Property

  • If one of the parties is declared insolvent it will render the joint estates insolvent as well, including the undivided half-shares of the other spouse.
  • When a spouse dies the administration of the joint estate may frustrate the surviving spouse.
  • Where one spouse owes creditors, they may claim from the other spouse as well.
  • One spouse cannot perform certain transactions without the consent of the other.
  • If one party fails to be supportive, co-operative or to contribute towards the joints estates it may cause inequality and unfairness in the marriage.

 

Marriage out of Community of Property with the Accrual System

Marriages out of Community of Property with the accrual has a similar advantage to the one without the accrual. However, the key difference is that assets and liabilities after marriages still belongs to the individual spouses. In cases where a marriage out of Community of Property with the accrual is dissolved, the assets that were accrued during marriage are equally shared between the parties.

Advantages of Marriages out of Community Property with the Accrual System

  • Two separate estate for each spouse.
  • Creditors of one spouse cannot claim from another spouse estate.
  • If the other spouse estate is declared insolvent, the other spouse’s estate is not affected by the insolvency of the other.
  • Spouses can enter into transactions without the consent of the other.

Disadvantages of Marriages out of Community Property with the Accrual System

  • Accrual system only operate in respect of the growth that happens during the marriage and does not include property obtained before the marriages.
  • There is a risk upon dissolution of the marriage that one spouse will end up with a large estate and the other with a small estate.

Marriages out of community of Property without the Accrual System

Marriages out of community property without the accrual means that there is no sharing of assets, debts or liabilities. The spouse’s assets acquired before and during the marriage remain their own separate property. The parties are also not responsible each other’s debt and the property belonging to one spouse cannot be touched by creditors during insolvency of the other spouse. In case of divorce, each other spouse retains his or her own property.

Advantages of Marriages out of Community of Property without the Accrual System

  • Two separate estate.
  • Creditors cannot claim from another spouse’s estate;
  • If one spouse is declared insolvent it does not render the estate of the other insolvent of the other insolvent too.
  • Spouses can enter into transactions without the consent of the other.

Disadvantages of Marriages out of Community of Property without the Accrual System

  • Upon dissolution neither spouse has any claim against the other, except a potential claim for spousal maintenance.
  • May be prejudicial to stay at home parents.

It is advisable to couple’s who wish to be married to know the advantages and disadvantages that comes with the matrimonial regimes, contact our offices for further assistance in this regard.

 

 

 

 

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