Marital Regimes In South Africa – Part One
Marital Regimes In South Africa – Part One
Getting married? Then you must face a very important question: to antenuptial contract or not to antenuptial contract?
When you are getting married it is important to decide if you would like to be married in community of property or out of community of property. If you do not sign an antenuptial contract before the date of your marriage you will automatically be married in community of property.
Herewith a short discussion to differentiate between married in community of property and married out of community of property:
1. MARRIED IN COMMUNITY OF PROPERTY:
Marriage in community of property means that there is one joint estate that belongs to yourself and your spouse. The joint estate includes all assets and debts that any of the spouses acquired prior to the marriage as well as all assets and debts acquired during the marriage. This means that you and your spouse share everything equally. You and your spouse will jointly be held liable for all debts incurred. If one spouse is declared as insolvent, the other spouse will automatically also be insolvent. This means that the creditors of the original insolvent person are entitled to, not only attach the assets of the insolvent person but the whole of the joint estate is subject to the insolvency.
Neither party has full contractual capacity. This means that you cannot enter into any contracts without obtaining the written consent of your spouse. This includes finance for vehicles or properties, opening of bank accounts, opening of accounts at clothing stores etc.
MARRIED OUT OF COMMUNITY OF PROPERTY
If the parties sign an antenuptial contract, duly drafted and attested by a notary public, they will be regarded as married out of community of property. In this marital regime both parties retain their own estate. You will be regarded as a separate financial entity from your spouse.
You do not share the assets or debts as with a married in community of property regime. This is an advantage as each spouse can protect their assets from creditors. Each spouse will have full contractual capacity and you do not need the consent of your spouse to conclude any contracts.
Selecting the appropriate marriage regime is a critical decision for couples, impacting their financial security and legal rights during the marriage and in the event of divorce or death.
In the second part of this blog series, we will delve into the two types of Antenuptial Contracts available: one with the accrual and one without.
Deciding on the best option for you can be challenging and may require extensive discussion between you and your prospective spouse. We would advise that you make an appointment with our notary at Brits Law to have a thorough discussion with regards to your options and to ensure that the contract is tailored to your specific needs.