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Statistics indicate that more people opt to seek legal assistance when faced with a divorce than before the conclusion of a marriage. Although it is not a tragedy and while we hold the view that it bears more fruit to seek legal assistance during both stages, we believe it is equally critical to seek legal assistance before entering into a marriage insofar as it assists immensely in the event of a divorce in future.

Seeking legal assistance before concluding a marriage will assist the parties/spouses to make informed choices regarding the matrimonial property system they prefer to be applicable to their marriage, a phenomenon which becomes critical at the time of divorce. In this article, we shall demonstrate how the ownership of property is affected by the different types of matrimonial property systems so that parties may have better appreciation on why it is important to seek legal assistance to understand these systems. 

Matrimonial property systems in South Africa are governed by the Matrimonial Property Act 88 of 1984 (MPA), which provides for three (3) matrimonial property systems. We shall use a house in order to demonstrate how ownership will be affected by the three matrimonial property systems.

Scenario 1 – Marriage in Community of Property

The marriage in community of property system is the default matrimonial property system in South Africa. The main consequence of spouses getting married in community of property is that the individual estates of the spouses will combine to form a single, joint, indivisible estate in which the spouses own equal shares, as was held in such cases as (Estate Sayle v Commissioner for Inland Revenue 1945 AD 388; De Wet v Jurgens 1970 3 SA 38 (A); Mazibuko v National Director of Public Prosecutions 2009 6 SA 479 (SCA). This is despite the fact that, for example, one spouse owned more assets than the other. Marriage in community of property results mainly in two scenarios, where parties did not execute an Antenuptial contract (ANC) at the time of entering into their marriage, or if they were married under customary law as per the Recognition of Customary Marriages Act 120 of 1998. Should any of these scenarios take place, if A has a house which he bought years before getting married to B in community of property, that house automatically becomes part of the joint estate meaning that B will now own an equal share on the value of that house. In the event of a divorce, B will be entitled to an equal share unless she waives her claim. 

Scenario 2 – Marriage Out of Community of Property without Accrual

Where spouses marry out of community of property without the accrual system, they retain their individual estates and enjoy the sole ownership and responsibility of their individual estates. This means that when parties conclude such a marriage, each spouse will remain the owner of all the assets they had before the marriage was entered into, and at the same time bear the sole responsibility of all the debts/liabilities that they had before the marriage. It does not end there, spouses will also retain ownership of assets they acquire during the marriage and also be responsible for all the debts/liabilities that they incur during the currency of the marriage.

In order for parties to conclude a marriage out of community of property without the accrual system, they ought to execute a valid Antenuptial contract (ANC) and it must specifically state that they intend to exclude the accrual system. The MPA however provides in section 21 for spouses who intend to alter their matrimonial property system from In-community of property to Out of community of property. Relating this to our scenario, it therefore means if either A or B had a house before entering into the marriage, and having got married out of community of property without the accrual system, either of them will retain sole ownership of their house.

Scenario 3 - Marriage Out of Community of Property with Accrual

The accrual system was introduced into the South African legal system by the MPA. The accrual system denotes a system whereby spouses retain their individual estates, but will only have a claim to share in the growth of what accrued in their estates after the conclusion of the marriage. For example, if the estates of both spouses grew by a combined value R500 000 during the currency of the marriage until the time of the divorce, then each spouse will have a claim to that growth of the estates when the assets are liquidated at divorce. In other words, one may imagine this system as a combination of the in-community of property and the out-of community of property without the accrual system. In this instance therefore, the spouse that owned the house before the marriage will still retain sole ownership of the house because the house was already acquired before the conclusion of the marriage and did not accrue during the currency of the marriage. If the house was acquired during the currency of the marriage, then booth spouses will have a claim on the value of the house when the assets are liquidated.

Van Deventer and Van Deventer Incorporated - Family Law Attorneys in South Africa

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