THE CURRENT POSITION ON MATRIMONIAL PROPERTY LAW IN SOUTH AFRICA

The matrimonial property system which you choose before you marry will affect your whole future and your estate. You must exercise an informed choice to determine your proprietary rights during your marriage, as well as when it is dissolved, either by death or divorce. Think carefully in your own personal interests and goals and do not allow your heart to cloud your judgment.

What are your options?

A marriage in community of property bares no formal processes before marriage as you will automatically be married in community of property if you do not execute and register an antenuptial contract. Alternatively you may opt for a marriage out of community of property, with or without the accrual system. This is achieved by registration in the Deeds Office of an antenuptial contract drawn up to suit your individual needs. The accrual system applies should you enter into a marriage in terms of an antenuptial contract without expressly excluding the accrual system. You can choose to include a provision in your antenuptial contract which records a mutual agreement between the parties that will serve to regulate the marriage.

Your antenuptial contract can also gives effect to any other arrangement between the spouses, such as donating a property or ceding insurance policies or a prenuptial agreement, provided that it is not contrary to the law or immoral.

Marriage in Community of Property

Both spouses share equally in the assets and liabilities of the joint estate. Both spouses now have equal powers of administration, and apart from some exceptions both can act independently. It is important to know about the exceptions which are contained in the Matrimonial Property Act and we can discuss these fully with you if necessary.

Advantages

This system is based on the principle that marriage is a partnership and as such it can be conducive to a harmonious marriage relationship. It promotes both legal and economic equality of the spouses. During the marriage and on its dissolution both partners are automatically entitled to a half share in the joint estate and each one has equal powers of administration.

 Disadvantages

Insolvency or indebtedness of one of the spouses affects the total communal property of both spouses. The system of equal powers could, in cases where one or both partners are not on level pegging, which may lead to conflict in the marriage.

You can apply to the High Court after a marriage in community of property to vary your matrimonial property system to an out of community of property system with or without the accrual principle but this can be an expensive and lengthy process.

 Marriage out of community of property with the accrual system

During the marriage each spouse retains control of his or her own property, builds up their own estate and each is responsible for their own debts… “What’s yours is yours and what’s mine is mine.” On dissolution of the marriage by death or divorce, the value of the assets obtained during the marriage (the accrual) will be shared equally. The accrual is determined by calculating the difference in the net starting value and the net final value of the estate of each spouse with the exclusion of inheritances, legacies and donations. On dissolution of the marriage the value of the difference in the accrual of the two estates, taking inflation into account, is then divided equally unless this has been varied in the antenuptial contract.

 Advantages

The accrual system is a modern, equitable system and can be conducive to harmonious marriage relationship. It was deliberately introduced from German law to empower the poorer spouse. It offers some protection during the existence of the marriage against, for example, insolvency of one of the spouses and, at the same time, at dissolution of the marriage each spouse has an equal share.

 Disadvantages

A possible disadvantage, especially in the case of a wealthy spouse, might be that he or she feels that they are not quite free to deal with their property since the other spouse could apply to court for the immediate division of the accrual should the latter feel that the former, by entering into a specific transaction, might prejudice his or her right to share in the accrual. This may cause friction.

Another disadvantage of the accrual system is that spouses do not share in each other’s credit worthiness, which may entail that an unemployed spouse may have little credit worthiness during the subsistence of the marriage if their estate is small.

 Marriage out of community without the accrual system

If the parties agree that this is the most beneficial regime for them, this contract is recommended, for instance, where:

Both parties are business people in a high income group where each estate is protected from the other spouse’s estate and more so against creditors; or

The parties are entering into a second marriage or where the proprietary interests of children may be involved in second and further marriages.

Additional considerations

Try to have your antenuptial contract executed well before your marriage rather than rushing it and regretting an omission or an inclusion later. It can only be varied through the High Court’s approval, which is not guaranteed, and is often expensive and administratively demanding. Remember that you must sign an antenuptial contract before you marry if you want to be married out of community of property. Evidence of the signing of an antenuptial contract is provided in the form of a notarially attested letter from a notary public that your priest or marriage officer will require prior to the marriage ceremony.

There is no preferred marital regime; however it is about communication and understanding each other better so you should at least have this discussion before marriage. We also suggest that you consider a digitally aware will/s which takes full account of your digital assets if one or both of you do not have one or that you revise your existing will/s in the light of your impending marriage and your digital footprint. At the least, you should ensure you have a currently effective will.

For more information on this or any other legal related queries please contact us at 033 392 8000

By: Thato Mokone – Attorney

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