Marriage Out of Community of Property and the Law
In a Marriage Out of Community of Property, there is no joining of the separate spousal estates. Each spouse has his or her own separate assets, liabilities, debts and each administer their own estate and have full control over their own property. This form of marriage is achieved by drawing up a antenuptial contract.
Read More: The antenuptial contract allows each spouse to tailor make their matrimonial property agreement. In this contract the spouses can make provisions that will regulate their financial and proprietary consequences.
There are two types of antenuptial contracts, namely;
- excluding the accrual system
- including the accrual system but excluding community of profit and loss
Marriage out of community of property with Accrual System
The accrual system is a form of sharing of assets that are built during the marriage. This means you will need to calculate each estate separately to establish the value of the estate and shared estate on the dissolution of the marriage.
When parties wish to be married out of community of property with the accrual system being applicable, it is important that the commencement value of each parties estate is determined and stipulated in the antenuptial contract which is accepted and verified by each party.
On dissolution of the marriage, the net value of each estate is determined. The larger estate must then transfer half of the difference to the smaller estate. In other words, the smaller estate must claim for an amount equal to half of the difference between the accruals of the respective estates. The right to share in the accrual only commences upon dissolution of the marriage by divorce.
Disadvantages of marriage out of community of property with the accrual
- The economically stronger spouse has to share the profits that he/she made during the marriage
- One has to enter into an antenuptial contract (ANC) in order for the accrual system to apply
- The calculation of accrual at the end of the marriage can be complex
Marriage out of community of property without the accrual system
- Spouses do not share their assets and on the dissolution of the estate, they get the whole estate.
- Each spouse is responsible for their own debts
- The creditors of each spouse cannot attach the other spouse’s estate.
- If one spouse is unemployed and is financially dependent on their spouse, upon dissolution of the marriage, they will not be entitled to any property from his or her share, and may get only spousal maintenance
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Matrimonial Property Act 88 of 1984
Recognition of Customary Marriages Act 120 of 1998
Civil Union Act 17 of 2006