Marriage In Community of Property and the Law
South African law provides for two different types of marriages; marriage in community of property and marriage out of community of property (with or without the Accrual System). If you have become engaged and are wrapped up in the euphoria of planning the wedding, take a while to consider which system of marriage will be most beneficial for you.
In Marriage in Community of Property, both husband and wife share the risk and benefits of a joint estate in equal shares. This means whatever each of you bring into the marriage (house/cars/furniture/debt/investments) are both owned by you as one unit. So if either of you have a debt/debts you are both responsible irrespective of who caused the liability.
What does this mean for you?
The separate estates belonging to the husband and the wife become a joint estate the day they become legally married. This includes (gifts, donations, inheritances and renumeration) There are a few exceptions, where certain assets may not be included in the joint estate. For example, if a will stipulates that an inheritance should not form part of the joint estate, then that inheritance cannot become part of the joint estate. Make sure that you are aware of any wills that exists from which you will benefit in the future and make this known.
All liabilities incurred by both husband and wife before and during the marriage are considered liabilities of the communal estate. Therefore, if one spouse comes into the marriage with a lot of debts, his/her debts will then form part of the communal estate.
Such debt may be a contractual debt (e.g. Loans), maintenance payable to extramarital child/children. During the course of the marriage, the consent from the other spouse is required in certain transactions in terms of Section 15 of the Matrimonial Property Act 88 of 1984, these transactions includes but limited to;
- Alienate, mortgage, burden with a servitude or confer any other real right in any immovable property forming part of the joint estate.
- Enter into any contract for the alienation, mortgaging, burdening with servitude or conferring of any other real right in immovable property forming part of the joint estate.
- Alienate or pledge any jewellery, coins, stamps, paintings or any other assets forming part of the joint estate and held mainly as investments.
- Make a donation of an asset to any other person where the asset forms part of the joint estate.
Marriage in community of property is the cheapest way to tie the knot, BUT you should always remember that the effect of this marriage means that the spouses share in all profit and loss, risk and benefit thereof. In short this type of marriage = what’s mine is yours and what’s yours is mine.
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Acts: Matrimonial Property Act 88 of 1984, Recognition of Customary Marriages Act 120 of 1998, Civil Union Act 17 of 2006