Many couples are not aware that they have a choice as to how they may be married. And it entails
more than the venue and Minister! Couples can chose the best option for them from the below three
regimes:
IN COMMUNITY OF PROPERTY
In South Africa the standard/default form of marriage is in Community of Property. This means that
two estates are joined and each spouse owns an undivided half share. Each party has the right of
disposal over the assets of the joint estate. Although consent is required from the other party to
alienate or encumber estate assets, written consent is only required in certain cases. Creditor's may
seize the entire estate to satisfy debts of either party. Thus on insolvency the whole estate is lost.
Upon termination of the marriage by death or divorce, assets which are not always capable of division
have to be divided or sold. Marriage in Community of Property is not ideal for individuals who intend
to partake in business ventures. If the couple does not sign an Ante-Nuptial Contract prior to getting
married, their marriage will automatically be in community of property.
OUT OF COMMUNTIY OF PROPERTY
This is the form of marriage where, by means of an Ante-Nuptial Contract, community of property and
profit and loss is excluded. The contract is registered in the Deeds Office. The Ante-Nuptial Contract
provides that in respect of property and contracts, there is no change in the legal status of the parties.
Each has his/her own estate. Neither party is liable for the debts of the other. The parties are entitled
to enclose any conditions in an ANC, provided that such conditions are legal and morally correct.
There are two types of ANC, namely one which specifically excludes the accrual system and one in
which the Accrual System is applicable. The exclusion of the Accrual System has the legal effect that
both parties lead completely separate financial lives and that neither party has a claim against the
other on termination of the marriage.
ACCRUAL SYSTEM
When the Accrual System is applicable, each spouse still retains financial and legal independence
and equality. However, when the marriage is terminated either by death or divorce, the accruals of
each separate estate excluding inheritance and donations received during the subsistence of the
marriage and any other accruals specifically excluded by the parties, are divided equally or in agreed
proportions. At the commencement of the marriage, the parties declare the value of their separate
estate and this value will increase according to the consumer price index to determine its present day
value as previously declared in the Ante-nuptial contract. Upon termination of the marriage the value
of the two estates are compared. The smaller growth value is then deducted from the larger growth
value and the balance is divided between the parties in equal shares. The Accrual System, if used,
may apply specifically to certain assets or it may exclude certain asset.
Should you wish to discuss which regime would best suit your marriage, or have an ANC drafted and
regiatered, please contact Lara Thomas on 041 373 0030, alternatively lara@thinklaw.co.za.
