Navigating the different matrimonial property regimes in South Africa
Getting married is not quite as simple as saying “I do”. There are many legal and financial ramifications attached to a modern marriage, and it is important to know how to navigate these waters before taking the plunge.
In South Africa, people can get married in terms of both civil and customary law; and there is one of three matrimonial property systems applicable to any such marriage :
Marriage in community of property;
marriage out of community of property without the application of the accrual system; and
marriage out of community of property with the application of the accrual system.
Whereas spouses married in community of property share equally in the assets and liabilities that either of them own, acquire or owe before or during the marriage, spouses married out of community of property retain control of their own property, grow their individual estates and are responsible for their own debts. When a marriage out of community of property is dissolved, and the accrual system is applicable, the difference between the respective values of the assets of each spouse obtained during the marriage, i.e. the accrual, will be shared equally between the spouses.
It is particularly important to note that the default matrimonial property system is in community of property. This means that in order to be married out of community of property, with or without the application of the accrual system, an antenuptial contract must be concluded between the relevant parties prior to the conclusion of the marriage. The antenuptial contract must also be notarised and registered at the Deeds Office within three months from the execution thereof. These formalities need to be complied with in terms of both civil and customary marriages.
On a final note, if an antenuptial contract has not been concluded, and the default position applies, it is possible for the matrimonial property to system to be altered to out of community of property. However, this is an administratively burdensome process that involves, among other things, an application to the High Court setting out sound reasons for the proposed change.
We trust that you found this article informative, please email info@hjw.co.za for any assistance regarding an intended marriage and the conclusion of an antenuptial contract.
Written by Michael Clur – Candidate Attorney.
This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at info@hjw.co.za directly for advice applicable to your specific matter.