Planning for a wedding is an exciting time of your life, and it’s a time where you’re making one of the most important decisions of your life. And while everyone dreams of a seamless, fairytale wedding, there are details that need some serious consideration before saying “I do”. One of those is the marriage contract you’ll enter into.
There are three types of matrimonial property systems in South Africa. These are: marriages in community of property, marriages out of community of property, which are subject to the accrual system, and marriages out of community of property, excluding accrual.
Despite being a very popular marriage agreement in South Africa, marriage in community of property arrangements are not advisable for various reasons. In this form of marriage contract, the two estates are joined together into one estate of equal, undivided shares. In other words, the couple owns the joint estate together and it is only divisible upon termination of the marriage. Below we’ll explain what the disadvantages are of getting married in community of property.
- Getting married in community of property means that you are responsible for all debt incurred by your spouse – even debt that was incurred before your marriage. If you are the financially stronger spouse going into the marriage, your financial position could be weakened by being in community of property.
- On that note, if a couple is married in community of property, all their assets can be seized by a court order to pay the creditors the money owing to them, even though the one partner may have had no connection with the business or had been in no way involved in running up the other individual’s too large debts.
- If the spouse happens to die intestate (without a will in place), the surviving spouse will be given only half the assets, the other half automatically being set aside for the dependents (in most cases usually the children or in the absence of children the nearest relations).
- Another point to consider is that if the marriage ends in divorce, your possessions and wealth will be split equally, regardless of who brought what into the marriage.
As with all marriage contracts, there are pros and cons associated with each type. However, we believe that the disadvantages associated with being married in community outweigh the disadvantages of being married out of community.
If you are engaged or considering marriage, and feel that you need more information in making decisions as to the legal consequences of your marriage, please do not hesitate to contact us.