Marriage law: The fine print in love matters

The matrimonial property regime in South Africa can be categorised into either in community of property or out of community of property.

Within the latter, there is a further division of being either with accrual or without accrual. But what does this all mean, and which one is right for you?

In community of property

If couples choose to register a marriage without signing any antenuptial contract, their marriage is regarded as being in community of property. All assets and liabilities, which each individual may own or owe, will on the date of dissolution of the marriage, be it by death or divorce, be shared equally between the parties, regardless of the contribution made by each.

Couples married in community of property may not transact individually in certain circumstances and will require spousal consent.

Out of community of property

Most couples today opt for being married out of community of property. In this category we have the option of being married with or without accrual.

Without accrual

If couples opt to marry without accrual applying to their marriage, it means all their individual assets and liabilities remain separate throughout the marriage.

Each person is responsible and liable for their own debts and accumulating their own asset base. On dissolution of the marriage, neither party has any claim against the other nor is any party liable for part of the other’s debt.

With accrual

Most couples marry out of community of property with accrual. With the accrual system, parties can exclude any assets they have prior to the marriage if they so wish.

In addition, statute specifies that certain assets will be automatically excluded, such as inheritances or compensation received for pain and suffering.

Accrual is meant to level the playing fields on the dissolution of the marriage so if one of the parties was a homemaker, they have a claim against the other party’s estate, without being liable for the other party’s debts.

Simply put, the party that has acquired the most during the marriage must share a portion of the assets.

Formalities

The antenuptial contract regulates the financial arrangement between a couple and provides protection against creditors.

Couples are encouraged to prepare a will and have an antenuptial contract.

Cliffe Dekker Hofmeyr is a leading law firm

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