Marriage in or out of community of property?
The marital regime selected at the time of entering into a marriage will have a significant impact on how ownership of property is dealt with within the marriage, which is why it is important to understand the different options available and select the one that best suits you.
Marriage in community of property
In South Africa, the default position is that a marriage between two spouses will be entered into in community of property unless the parties have concluded an antenuptial contract prior to their marriage.
All the assets and debt from before the marriage are shared in a joint estate between the spouses; and all assets, debts and liabilities acquired by either spouse after their marriage will be added to the joint estate.
The antenuptial contract
The purpose of an antenuptial contract is to exclude the community of property relating to profit and loss from the marital regime selected. For this to take effect, the antenuptial contract must be executed before a notary before commencement of the intended marriage and must be registered at the Deeds Registry within 3 months of execution.
The result of this antenuptial contract is that the spouses are fully independent and there is a complete separation of the estates.
In addition, it is possible to select an antenuptial with or without accrual.
Marriage out of community of property with accrual
A spouse’s accrual is the growth or accumulation of assets that form part of his or her estate during the marriage. This accrual is calculated as the difference between the net value of the estate at the commencement of the marriage and the net value upon the dissolution of the marriage (either by death or divorce).
The value of each spouse’s estate must be disclosed upon the commencement of the marriage. This should be done in the antenuptial contract or in a separate statement concluded and certified by a notary within 6 months of the marriage date. If no value is recorded, then the commencement value will be presumed to be nil.
On dissolution of the marriage each spouse’s estate will be valued in order to calculate the accrual of each estate and the commencement values will be adjusted to make provision for inflation.
The spouse whose estate shows a smaller increase will be entitled to receive a portion of the other spouse’s estate, calculated according to the percentage agreed in the antenuptial contract (if this is not stipulated, the default of a 50/50 split will take effect).
The following assets will, however, be excluded from the calculation of accrual:
- Damages received for non-patrimonial loss (such as damages awarded for pain and suffering, emotional shock, disfigurement, loss of amenities of life and shortened life expectancy)
- Inheritances, legacies and donations received from third parties (unless the parties agree otherwise in the contract)
- Assets excluded from the accrual in the antenuptial contract
- Donations between the spouses (the parties can, however, agree that donations between them are taken into account when calculating the accrual of the estate of the donor)
The parties can agree that the accrual system shall not operate on termination of the marriage if either spouse is insolvent.
Selecting the right marital regime for you is important and should you be unsure of the details, it’s advisable to consult with a legal professional before making a decision.
Written by Wessel de Kock
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