Mc Naught & Co
For Better or Worse
Wedding planning can be a very stressful yet exciting time and is a very important day in a person’s life. Amidst stressing over the flower arrangements and having the perfect table setting, people often forget about the legalities of marriage and the consequences thereof.
There are two types of matrimonial regimes in South African law, namely, marriages in community of property and marriages out of community of property.
Marriages in community of property
From the date of the marriage the estates of both spouses are considered as one estate and means that each spouse is entitled to half of the assets and liabilities of the estate. Therefore, if a spouse incurs debt, creditors may claim from both spouses as they are both jointly and severally liable due to the co-ownership / joint estate. A marriage in community of property really is for better or for worse. If you don’t enter into an ante-nuptial contract before the date of your marriage, you are deemed to be married in community of property.
Marriages out of community of property
When spouses enter into an ante-nuptial contract, the marriage is out of community of property with a choice of either including the accrual system or excluding it. Where the accrual is excluded, each spouse will solely own their respective estates, I.e. their own assets and liabilities. Where the accrual is included, spouses still have separate estates, however the net value of all assets acquired from the date of the marriage are then shared on dissolution of the marriage. Further, spouses can choose to exclude certain assets that were obtained prior to the date of the marriage.
In terms of section 21 of the Matrimonial Property Act, it is possible to change your matrimonial regime by making an application to the High Court. The commencement of the Matrimonial Property Act in 1984 confirmed the abolishment of marital power in terms of the common law that was in favour of the husband in a marriage and ensures spouses now have equal powers in a marriage.