The Different Marriage Systems

In South Africa many people still do not know the different marriage systems and the possible effects on their estates. It leads to a rather nasty surprise later on in life when the marriage dissolves. There are two different types of legal civil marriages in South Africa; in community of property or out of community of property. The default marriage system in South Africa is in community of property. The execution of an ante-nuptial contract (ANC) or “pre-nup” , is required to be married out of community of property.

In Community of Property

Marriage in community of property entails the joining of each spouse’s separate estates. All assets that each spouse owns before the marriage and all assets accumulated during the marriage - with certain exceptions such as inheritance, donations or certain damages claims - form part of the joint estate. Upon dissolution of the marriage the joint estate will be divided equally between the two spouses.

An important aspect to keep in mind is that it is not only assets that form part of the joint estate. Both parties’ liabilities and debts form part of the joint estate as well. Therefore any possible claim against one spouse is enforceable against the other.

In most cases marriage in community of property is not the most suitable although most people in South Africa are married in terms of this system.

Out of Community of Property

Marriage out of community of property entails that the parties’ estates are not joined as one estate; instead the parties’ estates remain separate. The conclusion of an ante-nuptial contract is required to give effect to this type of marriage which can be affected with or without the accrual system.

Out of community of property with the accrual system

When a marriage is concluded out of community of property, with the accrual system, the spouses separate estates before the marriage, remains separate at the time of divorce. The growth of their separate estates from the point of marriage however, is joined. All liabilities generally remain separated.

For example:

- Before marriage Party A has an estate valued at R 100 000. 00 and party B also has an estate valued at R 100 000. 00.

- During the course of the marriage, party A’s estate grows to R 400 000. 00 and party B’s estate grows to R 200 000. 00.

- Party A’s estate has therefore increased by R 300 000. 00 and party B’s estate has increased by R 100 000. 00.

- Upon termination of the marriage the initial R 100 000. 00 of each party will remain separate.

- The accrual of part A’s estate being R 300 000. 00 and the accrual of party B’s estate being R 100 000. 00 will be equally divided with each party receiving R 200 000. 00 each upon the dissolution of the marriage.

Out of community of property without the accrual system

When a marriage is concluded out of community of property, without the accrual system, the spouses separate estates before the marriage and whatever is accrued during the course of the marriage remains entirely separate at the time of divorce.. All liabilities and debts remain completely separate as well. If we use the above example, then both parties would retain whatever they brought into the marriage as well as whatever their estates accrued during the marriage. Upon divorce they would retain their separate estates.

The Ante-Nuptial Contract (section 86 of the Deeds Registry Act)

An ante-nuptial contract has specific requirements which must be met in order to be valid in law.

Many people enter into an ante-nuptial contract but do not comply with the requirements. Only at

the time of divorce do they realise that they have been married in community of property for many

years.

 Requirements

1) The ANC must be entered into by both parties before the day on which the parties become legally married; the parties will be legally married if their marriage is solemnized by a marriage official.

2) The ANC must be signed before a notary public, in the presence of two competent witnesses and in the presence of each other. Parties may appoint another person by a power of attorney to sign the ANC.

3) The ANC must be lodged with the relevant Registrar of Deeds within three months of execution.

It is advisable to contact an attorney and seek legal advice well before the marriage date.

Article by:

Taahir Hassim

Attorney of the High Court

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