Should you marry in community of property?

Planning your big day is an exciting time, filled with a number of moving parts. Beyond your wedding flowers and seating chart, it’s important to give lots of thought to the legal side of getting married.

As you join hearts with your partner, you also enter into a legal agreement that can have serious repurcussions later on in life. As such, this might be the most important decision you make in the lead up to your big day.

Couples intending to marry will have to sign a marriage contract. South Africa has three main matrimonial property systems, and each option will largely impact on the couple if they decide to divorce later on in life.

Marriage in community of property:

Legal Wize explains that marriage in community of property essentially combines the estates of the married couple. Property and debts acquired prior to or during the marriage are shared equally in undivided shares (50%). Both spouses are jointly liable to creditors.

South African law automatically opts for this marital regime unless another regime is selected. This is the most popular agreement in the country, although it’s not the advisable option for many reasons.

This contract makes you responsible for all debt incurred by your spouse, including debt incurred before your marriage. Your financial position could thus be weakened by your partner. In the event your assets are seized by a court order to pay creditors for money owed to them, all of your assets can be taken because your estates are joined.

Beyond this, if your spouse dies without a will in place, the surviving spouse is only entitled to half of the assets. The other half are automatically granted to any dependents like children, or the deceased’s nearest relations in the absence of kids.

Of course, if the marriage ends in divorce then all assets will be split equally, regardless of what you came into the marriage with.

This option makes the most sense for couples who enter into the marriage with little assets. However, you cannot predict the future. You might hit it big later on in life and your relationship with your partner may turn sour, but you will still have to share your assets equally in the event of divorce.

Marriage out of community of property with accrual:

Another option is to marry out of community of property with accrual. The accrual system is a formula that is used to calculate how much the larger estate must pay the smaller estate if the marriage comes to an end through death or divorce.

Only property acquired during the marriage can be considered when calculating the accrual. The accrual system does not automatically apply and must be included in an ante-nuptial contract.

An ante-nuptial contract is a contract entered into to regulate whether a marriage will be out of community of property with/without the accrual system. It must be signed by the persons entering into a marriage, two witnesses and a notary public, and it must be registered in the Deeds Registries office within the prescribed time period.

Marriage out of community of property without accrual:

If a couple decides to marry out of community of property without the accrual system, the spouses have their own estates which contain property and debts acquired prior to and during the marriage (“what is mine is mine and what is yours is yours”). Each spouse is separately liable to his/her creditors. Prior to the marriage, an ante-nuptial contract must be entered into to indicate that the marriage will be out of community of property.

This marriage contract protects your individual assets, but disadvantages the spouse who earns less. The breadwinner of the relationship will end up with greater assets because they likely paid for it, disadvantaging the other spouse and all of their unpaid efforts in the marriage. This is especially damaging for those who stop working to raise their children while their partners work, as their reproductive labour goes unrecognised by the law.

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