Marriage and Matrimonial Property

Marriage and Matrimonial Property - Three Marital Regimes in South Africa

1. In community of property - All of the assets and liabilities that the couple share are jointly owned between the spouses.
2. Out of community of property with accrual - Each spouse declares their estate's nominal value before the marriage and retains their assets and liabilities until death or divorce when the accrual of each will be calculated and divided.
3. Out of community of property (without accrual) - All of the assets and liabilities acquired by the couple before and during the marriage - whether individually or together - will be separated equally.

Marriage in community of property

When couples don't sign an antenuptial contract before their wedding, they are automatically married in community of property. This means that both parties equally share the risk and benefits of a joint estate.

Their estate will be regarded as one estate, and they will both be liable for the debts and other liabilities, regardless of which one of them had incurred the debt.

This can have serious implications for the partner where the spouse incurs serious debt, for example from a failed business venture or gambling debts.

Marriage out of community of property

A marriage out of community of property is regulated with the use of an antenuptial contract. An Antenuptial Contract can be registered with or without accrual.  

Marriage out of community of property with accrual has the same benefits as one without accrual.

However, with a marriage out of community of property with accrual, cognisance is taken of the contributions each partner makes to the acquisition of assets during the marriage.

An example of the recognition of the role that each partner plays in supporting the other spouse is understanding that women are, more often than not, disadvantaged by their child bearing role within the family.

While the husband is able to continue working, the wife may be forced to adopt a more family supportive role.

What is an antenuptial agreement?

Before you get married, contact Van Deventer & Van Deventer Incorporated for an antenuptial agreement (otherwise known as a prenup, or prenuptial agreement) between you and your spouse, which will regulate the marital property issues flowing from your union through marriage.

Without an antenuptial contract, couples are automatically deemed to be married in community of property.

Van Deventer and Van Deventer Incorporated - Antenuptial Contracts

We would be happy to assist you plan properly for your married life together with your partner with an antenuptial contract. Please feel free to contact our attorneys in Johannesburg for advice on all your options.

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