Getting Married In Or Out Of Community Of Property?
It’s an exciting time when you’re engaged to be married and are planning your dream wedding – the colours, the cake, the flowers, the invitations, the honeymoon.
BUT REMEMBER TO CONSIDER THE LEGAL ASPECT OF YOUR MARRIAGE – EITHER IN OR OUT OF COMMUNITY OF PROPERTY.
If you choose to be married IN Community of Property, there is nothing that you need to do. When the marriage officer declares that you are married, you will automatically be married in community of property in terms of South African Law.
A matrimonial property system which is in community of property means that the husband and the wife own everything as a unit, both assets and liabilities. The husband and the wife will own all assets jointly whether the assets were owned by them before or during the marriage. They will also be jointly responsible for all debts even if those debts were incurred by one of them before the marriage.
If you choose to be married OUT of Community of Property, you must sign an Antenuptial Contract BEFORE you get married.
A matrimonial property system which is out of community of property is created when an Antenuptial Contract is signed and as soon as the marriage officer declares that you are married. The Antenuptial Contract must be signed before the marriage takes place, in the presence of a Notary Public and two witnesses and it must then be registered at the Deeds Registry. There are two types of matrimonial property systems which are out of community of property – without the operation of the Accrual system and with the operation of the Accrual system.
An Antenuptial Contract which excludes the Accrual system means that during the marriage and on dissolution of the marriage (which is either by the death of one spouse or by divorce), the husband and the wife each owns his or her own assets and will have his or her own liabilities. The estate of each spouse remains separate and neither estate will have a claim against the other. The disadvantage is that if one spouse is financially dependent on the other spouse, then on dissolution of the marriage he/she will not be entitled to any assets belonging to the other spouse.
An Antenuptial Contract which includes the Accrual system means that during the marriage, the husband and the wife will each own their own assets and they will each have their own liabilities. But on dissolution of the marriage (which is either by the death of one spouse or by divorce), the nett value of their accumulated estates is divided equally between them. The estate with the lesser value will have a claim against the estate with the greater value. The husband and wife can choose to exclude assets which means that on dissolution of the marriage, those assets will first be excluded from the operation of the accrual before their nett estate is calculated.
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