GETTING MARRIED

Planning a wedding can be stressful – not planning a marriage can be catastrophic. An engaged couple must make a decision before they marry as to the desired proprietary consequences of their marriage. They must ensure that they will each have the financial freedom and protection they require once they married.

In South African law, the parties can choose to marry In Community of Property or Out of Community of Property. The full consequences of this choice should be explained by an attorney. This article does not purport to be a comprehensive exposition of the law.

Marriage in Community of Property

Parties choosing this option do not have to comply with any formalities prior to the wedding.

The parties combine their separate estates to create a single joint estate. This is by operation of law and is not done contractually. Thereafter each can continue to act contractually without the consent of the other and bind the joint estate. There are, however, certain acts for which the other spouse’s consent is necessary e.g. sale, donation or mortgage of immovable property, entering into credit agreements, signing surety, donations of assets belonging to the joint estate and the sale or donation of furniture and other effects of the common household.

Upon the death of either spouse or divorce, the joint estate is, in the ordinary course, divided equally. However upon death, the joint estate falls to be administered even though only one of the parties may have died.

Marriage Out of The Community of Property

Parties choosing this option are required to enter into a contract before the wedding called an Ante Nuptial Contract. This contract must be signed by both parties in the presence of a Notary before the wedding ceremony.

The contract will contain terms to the effect that Community of Property and of Profit and Loss are excluded and the parties continue to have separate estates even after their marriage. They do not benefit from each other’s gains and in the ordinary course, are not liable for each other’s debts.

Upon the death of either spouse or divorce, the parties retain their respective estates.

Parties who have or might, in the future, have their own businesses or have considerable separate estates or have children from a previous marriage may choose to get married Out of Community of Property.

The Accrual System

The parties marrying out of Community if Property may also choose, when concluding the Ante Nuptial Contract, to either include or exclude the Accrual System. If it is not specifically excluded in the contract, the Accrual System automatically applies to the marriage.

In terms of the Accrual System, the parties retain their separate estates and must stipulate the net value of their estates in the contract. Upon dissolution of the marriage, the increase (accrual) of each separate estate is added together and then divided between the spouses on the basis agreed upon in the contract (normally 50/50). The parties can also exclude assets from the operation of the Accrual by stipulating them in the Ante Nuptial Contract.

This system is ideal for persons who wish to have the best of both worlds i.e. protection from the liabilities of the other spouse, yet sharing in the benefits brought about by the combined efforts in the marriage.

Before deciding on what matrimonial regime should apply to the marriage, arrange an appointment with our Notary in order that all the implications and options may be explained to you.

“ Whilst all reasonable steps are taken to ensure the accuracy and integrity of information provided, no liability or responsibility whatsoever is accepted if information or data is, for whatever reason, incorrect. The information does not constitute proper legal advice and should not be relied upon for that purpose.”