Understanding the Different Marital Regimes in South Africa
The South African Law is governed by three types of marital regimes. One being in community of property (without the necessity to register a prenuptial agreement). The second one being out of community of property without the accrual and the last marital regime being out of community of property with the inclusion of the accrual system. A marriage out of community is characterised by the registration of a prenuptial agreement.
Each of the marital regimes in South Africa have various financial implications for the estate of each spouse. An estate comprises the value of any assets that a person owns, minus any debts or liabilities. In order to make an informed decision that you and your partner agree on, you should familiarise yourself with the types of marital regimes in South Africa.
Marriage in Community of Property
In terms of marriage in community of property, both parties (you and your spouse) are the owners of the joint estate. The joint estate comprises all assets and liabilities that are consolidated into one single estate. This includes all assets accumulated by both parties prior to the marriage. In South Africa, a marriage in community of property is the default system whereby parties are married, without a registered prenuptial or ante nuptial agreement. One of the drawbacks of such a marital regime lies therein that the estate is not protected from creditors of one spouse. All assets may be seized, as the assets are jointly owned.
Marriage Out of Community of Property without the Accrual
Marriages out of community of property without the accrual means that there is no sharing of assets, debts or liabilities. The couple’s assets (acquired before and during the marriage) remain their own separate property. The parties are also not responsible for each other’s debt and the property belonging to one spouse cannot be touched by creditors during an insolvency of the other spouse. In the case of a divorce, each spouse retains his or her own property.
Marriage Out of Community of Property with the Accrual
A marriage out of property with the accrual has similar advantages to the one without the accrual. However there is a key difference. In cases where a marriage out of community of property with accrual is dissolved, the assets that were accrued during the marriage are calculated. The value of both estates from before the marriage are looked at, and the spouse with the larger estate will give the other spouse half the difference between the two estates. This means that there is equal sharing in the growth of each other’s estate.
Need Advice on Which is best for you by Expert Marriage Contract Lawyers?
If you and your partner need help from expert marriage contract lawyers for advice on which option will work best for you, as well as a more in depth understanding of the different types of marital regimes in South Africa, contact Engelbrecht Attorneys. Marital regimes are one of our specialties, and we have expert knowledge and years of experience. We can help you with competent legal advice and with everything that needs to be covered in your marriage contract.