MARRIAGE IN COMMUNITY OF PROPERTY.
By Shelton Mahandana
What is marriage in community of property?
A marriage in Community of Property is a sort of matrimonial arrangement in which the couples choose to have just one estate and equally split all assets and liabilities. In a community property state, spouses are made co-owners of all their combined assets when they are married [see Jacqueline Heaton, Hannertha Kruger. South African Family Law 4th edition].
The same rule applies to liabilities; they combine and become a part of the joint estate.
Marriage in Community of Property is the default marital system in South Africa.
If the spouse marries without first executing and registering an antenuptial agreement, their union will be deemed to be “In Community of Property”.
Advantages of marriage in Community of Property:
- It applies by operation of law without an antenuptial contract having to be executed and therefore requires no effort or expense on the part of prospectives spouses.
- Each spouse automatically shares in the assets that are accumulated during the subsistence of the marriage.
- Antenuptial assets are also shared.
- The credit worthiness of the husband and wife is the same during the subsistence of marriage.
Disadvantages of marriage in Community of Property:
- The principle of joint liability for debts results in neither spouse being protected against the other’s creditors. Insolvency, in particular poses serious problems for both spouses.
- If one spouse must be sequestrated, it will be the joint estate (both parties) that will be sequestrated.
- The joint management of the estate can be problematic.
- If you are financially successful spouse, you have to share your financial success with the financially less successful spouse.
- Consent or even written consent is required of the other spouse in some instances.
- Inheritances form part of the joint estate, unless the will excludes the inheritance from the joint estate.
